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              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
              Indiana University
              The American Bar Foundation, Chicago
              Cambridge Histories Online © Cambridge University Press, 2008
              cambridge university press
              Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, S˜ao Paulo, Delhi
              Cambridge University Press
              32 Avenue of the Americas, New York, ny 10013-2473, usa
              Information on this title: www.cambridge.org/9780521803052
              c Cambridge University Press 2008
              This publication is in copyright. Subject to statutory exception
              and to the provisions of relevant collective licensing agreements,
              no reproduction of any part may take place without
              the written permission of Cambridge University Press.
              First published 2008
              Printed in the United States of America
              A catalog record for this publication is available from the British Library.
              Library of Congress Cataloging in Publication Data
              The Cambridge history of law in America / edited by Michael Grossberg,
              Christopher Tomlins.
              p. cm.
              Includes bibliographical references and index.
              isbn 978-0-521-80305-2 (hardback)
              1. Law – United States – History. I. Grossberg, Michael, 1950– II. Tomlins,
              Christopher L., 1951– III. Title.
              kf352.c36 2007
              349.73 – dc22 2007017606
              isbn 978-0-521-80305-2 hardback
              Cambridge University Press has no responsibility for
              the persistence or accuracy of urls for external or
              third-party Internet Web sites referred to in this publication
              and does not guarantee that any content on such
              Web sites is, or will remain, accurate or appropriate.
              Cambridge Histories Online © Cambridge University Press, 2008
              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
              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
              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
              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 – “legal 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 “legality” and the competition of
              many alternative “legalities” – and one finds oneself at work in a field of
              immense opportunity and few dogmas.
              “Astonishing variety” demonstrates vitality, but also suggests the benefits
              of a judicious collective effort at authoritative summation. The field
              has developed at an extraordinary rate since the early 1970s, but offers no
              work that could claim to approach the full range of our understanding of the
              American legal past.5 The Cambridge History of Law in America addresses both
              5 The field has two valuable single-author surveys: Lawrence M. Friedman’s A History of
              American Law (New York, 1973; 3rd ed. 2005) and Kermit Hall’s The Magic Mirror.
              Neither approaches the range of what is on display here. The field also boasts volumes
              of cases and commentary, prepared according to the law teaching “case book” model,
              such as Stephen B. Presser and Jamil S. Zainaldin, Law and Jurisprudence in American
              History: Cases and Materials (St. Paul, MN, 1980; 6th ed. 2006) and Kermit Hall, et al.,
              American Legal History, Cases and Materials (New York, 3rd ed., 2003). There also exist
              edited volumes of commentary and materials that focus on broad subject areas within
              the discipline of legal history; a preponderance deal with constitutional law, such as
              Lawrence M. Friedman and Harry N. Scheiber, eds., American Law and the Constitutional
              Order: Historical Perspectives (Cambridge, MA, 1978; enlarged ed. 1988). Valuable in
              Cambridge Histories Online © Cambridge University Press, 2008
              xiv Editors’ Preface
              the vitality of variety and its organizational challenge. Individually, each
              chapter in each volume is a comprehensive interrogation of a key issue in a
              particular period of American legal history. Each is intended to extend the
              substantive and interpretative boundaries of our knowledge of that issue.
              The topics they broach range widely – from the design of British colonizing
              to the design of the successor republic and of its successive nineteenthand
              twentieth-century reincarnations; from legal communications within
              empires to communications among nation-states within international law
              to a sociology of the “legalization” that enwraps contemporary globalism;
              from changes in legal doctrine to litigation trend assessments; from clashes
              over law and religion to the intersection of law and popular culture; from
              the movement of peoples to the production of subalternship among people
              (the indigenous, slaves, dependents of all kinds); and from the discourse
              of law to the discourse of rights. Chapters also deal with developments
              in specific areas of law and of the legal system – 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
              Where appropriate, topics are revisited in successive volumes (crime and
              criminal justice, domestic relations law, legal thought, and legal education
              are all examples). Discussion of economic growth and change is ubiquitous,
              but we accord it no determinative priority. To facilitate comparisons and
              contrasts within and between eras, sequences of subjects have been arranged
              in similar order in each volume. Specific topics have been chosen with an eye
              to their historical significance and their social, institutional, and cultural
              coherence. They cannot be walled off from each other, so readers will notice
              substantive overlaps when more than one author fastens on the same issues,
              often to create distinct interpretations of them. History long since ceased to
              speak with one voice. In this History, readers are invited into a conversation.
              Readers will notice that our chronology creates overlaps at the margins
              of each era. They will also notice that some chapters focus on only particular
              decades within a specific era7 or span more than one era.8 All this is
              7 Chronologically specific topics – the American Revolution and the creation of the republic
              in Volume I, the Civil War in Volume II, the New Deal era in Volume III – are treated
              as such. Chapters on the legal profession in Volumes II and III divide its development at
              the CivilWar, as do those, in Volume II, on the state and on industrial organization.
              8Volume II’s chapter on the military deals with both the nineteenth and twentieth centuries,
              as do Volume III’s chapters on agriculture and the state and on law and the
              environment. The latter chapter, indeed, also gestures toward the colonial period.
              Cambridge Histories Online © Cambridge University Press, 2008
              xvi Editors’ Preface
              intentional. Historians construct history by placing subjects in relation to
              each other within the continuum of historical time. Historians manipulate
              time by creating periods to organize the placement of subjects. Thus, when
              historians say that a subject has been “historicized,” they mean it has been
              located in what they consider its appropriate historical-temporal context or
              period. Slicing and dicing time in this fashion is crucial to the historian’s
              objective of rendering past action coherent and comprehensible, but necessarily
              it has a certain arbitrariness. No matter how familiar – the colonial
              period, the Gilded Age, the Progressive period, and so forth – no historical
              period is a natural division: all are constructs. Hence we construct three
              “eras” in the interests of organizational coherence, but our overlaps and the
              distinct chronologies chosen by certain of our authors allow us to recognize
              different temporalities at work.
              That said, the tripartite division of these volumes is intended to provide
              a new overall conceptual schema for American legal history, one that is
              broad and accommodating but that locates legal history in the contours of
              American history at large. Maitland never forgot that, at bottom, just as
              religious history is history not theology, legal history is history not law.
              Notwithstanding law’s normative and prescriptive authority in “our” culture,
              it is a phenomenon for historical inquiry, not the source of an agenda.
              And so we take our cue, broadly, from American history. If it is anything,
              American history is the history of the colonization and settlement of the
              North American mainland, it is the history of the creation and expansion
              of an American nation-state, and it is the history of that state’s place in
              and influence on the world at large. The contents and the organization of
              The Cambridge History of Law in America speak to how law became king
              in this America and of the multitudinous empire of people and possibilities
              over which that king reigned. Thus we address ourselves to the endless
              ramifications, across more than four centuries, of the meaning of Tom
              Paine’s exclamation in 1776.
              The Cambridge History of Law in America could not have been produced
              without the support and commitment of the American Bar Foundation,
              Cambridge University Press, and our cadre of authors.We thank them all.
              The American Bar Foundation housed the project and, together with the
              Press, funded it. The Foundation was there at the creation: it helped initiate
              the project by sponsoring a two-day meeting of an ad hoc editorial consulting
              group in January 2000. Members of that group (Laura Edwards, Tony
              Freyer, Robert Gordon, Bruce H. Mann, William Novak, Stephen Siegel,
              Barbara Young Welke, and Victoria Saker Woeste) patiently debated the
              editors’ initial thoughts on the conceptual and intellectual direction that the
              History should follow and helped identify potential contributors. Since then,
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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
              Cambridge Histories Online © Cambridge University Press, 2008
              xviii Editors’ Preface
              and vicissitudes of life. One learns who (and whose family) may be ailing,
              and who is well. One learns of hurts and difficulties; one revels in successes.
              And one may learn, as we did so sadly in August 2006, of an untimely
              death. Notwithstanding the demands of his immensely successful career in
              academic administration, our colleague Kermit Hall never laid down his
              historian’s pen and was an enthusiastic participant in this project. He died
              suddenly and unexpectedly. His contributions to the field have been great,
              and he is greatly missed.
              Throughout, the many authors in this project have responded courteously
              to our editorial advice. They have reacted with grace and occasional humor
              to our endless demands that they meet their deadlines. Sometimes they even
              sent their manuscripts too. Most important, they have striven to achieve
              what we asked of them – the general goals of a Cambridge history and the
              specific goals of this history, as we have described them in this preface. Their
              achievements are evident in the pages of each volume. In an individualistic
              intellectual culture, the scholarship on display here demonstrates the
              possibilities inherent in a collective intellectual enterprise. In the end, of
              course, the editors, not the authors, are responsible for the contents of these
              volumes. Yet, it is the authors who have given the History its meaning and
              Michael Grossberg
              Christopher Tomlins
              Cambridge Histories Online © Cambridge University Press, 2008
              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
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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
              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 “law 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
              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),
              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
              “lands of conquest,” no matter what the realities of their actual occupation.
              Virginia, New York, and Jamaica, for instance, were consistently referred
              to as conquests. The “Emperor” of Virginia, Powhatan, was even crowned
              by Christopher Newport in an attempt to create the image of a North
              American Atahualpa. (The Privy Council, however, sent a copper crown for
              the ceremony rather than gold, thus carefully indicating the inferior status of
              James I’s new tributary ruler.) As late as 1744, in the negotiations which led
              to the treaty of Lancaster with the Iroquois, the Virginia delegation declared
              that “the King holds Virginia by right of conquest, and the bounds of that
              conquest to the westward is the great sea.” The Virginia colony, that is,
              reached all the way to the Pacific.
              Virginia was the clearest instance of a land of conquest, but it was by no
              means the only one. The early charters and letters patent are all liberally
              scattered with references to conquests and occupations, which for some
              jurists at least, seem to have been taken to be the same thing. Occupation,
              declared the most influential of them, Sir Edward Coke, “signifieth a putting
              out of a man’s freehold in time of warre . . . occupare is sometimes taken to
              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
              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
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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),
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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
              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
              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
              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
              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 “long since without any interruption
              or invasion either of the Savages (the natives of the country) or any other
              Prince or people,” which conferred upon James I the right to grant “rule or
              Dominion” over all “those English and Indian people.” In fact, “long since”
              amounted to little more than two years’ continuous presence. It is unlikely
              that any jurist, however zealous, could have accepted two years as sufficient.
              (In English common law the minimum period was generally held to
              be twelve years.) There was also the broader and more telling point, which
              Grotius had made, that because prescription was indeed a truly existential
              argument, it could only be a matter of civil law rather than part of the law
              of nations, in which case it clearly could not apply to contracts between
              “kings or between free peoples.”42
              All this notwithstanding, prescription, like terra nullius, was generally
              accepted by a large number of English jurists. Like terra nullius, it has had
              a long life in the subsequent history of international law. And since, pace
              Grotius, it was also widely held to be a part of the Law of Nations, it
              applied to all peoples everywhere. Robert Ferguson, one of the champions
              of the abortive scheme to create a settlement of Scotsmen in the Isthmus
              41 Edmund Burke, “Speech on the State of Representation of Commons in Parliament,” in
              Writings and Speeches ed J. F. Taylor (New York, 1901), 7: 94–5.
              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.
              The other argument, which John Marshall claimed was “not once alluded
              to” in any “single grant from the British Crown” until the eighteenth century,
              is cessation. British colonists, like their French and Dutch and later
              Swedish and other European counterparts, made wide and varied use of
              land purchases and of several kinds of land grants arrived at through treaty.
              Indeed, for most colonists, purchase, gift, or treaty was the most usual way in
              which individual colonists had acquired their land and had been so from the
              beginning.44 Whether in the Chesapeake or in Massachusetts, the earliest
              settlers purchased land whenever controversies over occupancy threatened.
              As with all such claims, the Crown’s right to grant a patent in the first
              place was not in question. Sovereignty, however, did not provide rights
              to property. Even after independence when much of the semi-independent
              status granted to the Indians by the Crown had been swept away, the new
              United States claimed only the right to preempt attempts by other nations
              to take possession. In their recognition of aboriginal title, as in so much else,
              the British were following French and most immediately Dutch examples,
              in particular after the Anglo-Dutch conflicts in the Connecticut valley in
              the 1630s. The Dutch West India Company, eager as always to distance
              itself from the behavior of the Spanish, “less we call down the wrath of
              God upon our unrighteousness beginning,” insisted that all land had to
              be “righteously” acquired without “craft or fraud,” so that, in the words of
              the colony’s governor, Willem Verhulst, in 1625, none of the Algonquin
              inhabitants of the Delaware and Hudson rivers should be “driven away
              by force or threats, but by good words be persuaded to leave, or be given
              something therefore for their satisfaction.” In accordance with this general
              principle, the following year Verhulst’s successor, Pieter Minuit, purchased
              Manhattan Island for sixty guilders.
              43A Just and Modest Vindication of the Scots Design, for Having Established a Colony at Darien.
              (N.P, 1699), 72–3.
              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 “lack such thing as a civil Polity, nor [do they possess]
              hardly any one of the circumstances essential to the existence of a state.”47 On
              August 24, 1705, the Privy Council had decided in favor of the Mohegans.
              Despite fierce lobbying from the colonists it reaffirmed the decision the
              following year. Not until 1763, however, was the matter decided by a formal
              royal decree intended to be irrevocable. The Proclamation has also had a
              long subsequent history. It was incorporated into the British North America
              Act of 1867 (now renamed the Constitution Act, 1867) and still forms the
              basis for much of the dealing between the Canadian federal government and
              Canada’s Aboriginal Peoples. As recently as 1982, Lord Denning declared
              that the Proclamation was as binding today “as if there had been included in
              46W. P. M. Kennedy, ed. Documents of the Canadian Constitution (Toronto, 1918), 20.
              47 J. H. Smith, Appeals to the Privy Council from the American Plantations (New York, 1950),
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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.
              In the end, the prolonged dispute over the legality of the occupation of
              America resolved itself into a dispute over the sources of sovereign authority.
              Who, in other words, had the right to make the law, and on behalf of whom?
              In 1776, Adam Smith complained that the rulers of Great Britain “have
              for more than a century past, amused the people with the imagination that
              they possessed a great empire on the west side of the Atlantic. This empire,
              however, has hitherto existed in imagination only. It has hitherto been not
              an empire but the project of an empire.”54 As Smith had seen, the de facto
              situation in the colonies, where every individual settlement enjoyed its own
              peculiar rights, laws were made at a local level, and separate constitutions
              and even separate semi-feudal hierarchies (think of the Carolinas with its
              Caribbean Caciques, and Hanoverian Landgraves) might be established,
              could hardly be an “empire” as the term was currently employed. This
              “project of an empire” had been brought into being largely because, unlike
              the French or the Spanish, the English Crown had never had any clear
              conception of what were the grounds for the occupation of the Americas.
              As we have seen, the Crown had generally insisted that its colonies overseas
              were lands of conquest, even though very few acts of conquest had actually
              taken place. Under English common law, conquest made them integral parts
              of the royal demesne and subject directly to royal command, not Parliament.
              Logically the colonists were not, as was later claimed, represented “virtually”
              in Parliament; they were represented literally, just not in person but by the
              “King in Parliament.” Yet, its general jurisdictional claim put to one side,
              the Crown not only made grants of lands to its subjects but it also permitted
              those subjects to make their own laws – something that none of the other
              European monarchies, all of whose colonies were governed by codes issued
              in the metropolis, ever did. What this meant was that in practice, if never in
              law, the Crown shared sovereignty with its settler populations. Much later
              this would be transformed into a recognized principal of imperial law. After
              centuries of struggle, sovereignty in Europe had become indivisible. But
              54 An Inquiry into the Nature and Causes of the Wealth of Nations, ed. R. H. Campbell and
              A. S. Skinner, The Glasgow Edition of the Works and Correspondence of Adam Smith 2 vols.
              (Oxford, 1976), II: 946–7.
              Cambridge Histories Online © Cambridge University Press, 2008
              30 Anthony Pagden
              beyond the frontiers of Europe – as Henry Sumner Maine, sometime Regius
              Professor of Civil Law at Cambridge and Member of the Viceroy of India’s
              Council, would declare in 1887 – “sovereignty has always been regarded as
              divisible.”55 As Maine recognized, although the problem had never been
              formulated as such, up until the end of the Seven Years War, this had
              effectively been the practice in British North America. As an anonymous
              contributor to the Pennsylvania Journal in March 1766 expressed it, “In a
              confederacy of States independent of each other yet united under one head,
              such as I conceive the British empire at present to be, all the power of
              legislation may subsist full and complete in each part, and the respective
              legislatures be absolutely independent of each other.”
              After 1763 when faced with a government determined to regain full
              sovereignty over all its domains, both within the British Isles and overseas,
              the American colonists turned to those arguments that, in natural rather
              than civil law, could help them secure the survival of their de facto rights.
              This demanded that they reexamine, and very substantially rewrite, the
              early history of the original settlements. For questions as to how and by
              what authority indigenous peoples had been deprived of what in natural law
              was usually conceded to be their dominium would in the end determine not
              so much the status of whatever remained of those peoples as the future legal
              status of the English colonies and their inhabitants and, more important,
              the status of what the successors to those colonies might be. For most of
              the jurists who attempted to construct a convincing legal argument for
              independence from the Crown, and for the early legislators of the new
              republic, the task was to set aside the long-standing English argument
              that America had been a land of conquest. To do this they turned to those
              two other claims, discovery (as in terra nullius) and purchase or concession,
              which had always appealed to the early colonists precisely because they
              might provide rights in natural law, but had never, for that very same
              reason, figured in the official legal languages of the metropolis. American
              law was and is based upon English common law. But it should never be
              forgotten that the early history of American law was marked by a struggle
              for emancipation that also demanded a reconstruction of the relationship
              between the Europeans and the Native Americans.
              The English waited until the early eighteenth century before they began
              to contemplate the awful possibility of separation from the mother country.
              But the forms of government and the legal system in effect in the colonies
              had from the beginning established a de facto independence that no other
              55 International Law.Aseries of lectures delivered before the University of Cambridge 1887 (London:
              John Murray, 1888), 55–7.
              Cambridge Histories Online © Cambridge University Press, 2008
              Law, Colonization, Legitimation, and the European Background 31
              European monarchy had permitted its settler populations. The entire subsequent
              history of law in the United States, the fact that much of it remains to
              this day closer to its English common law origins than the legal systems of
              any of the other former European colonies in the Americas resemble theirs,
              has its origins in their experience of de facto independence.
              Cambridge Histories Online © Cambridge University Press, 2008
              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 “law” in the way that Europeans use the term. By then,
              discovery narratives had begun to give way to neo-conquest analyses that
              stressed the brutality of European behavior and the often fatal biological
              consequences of European occupation of the Americas after 1492. However,
              until the cross-cultural encounter narratives of the 1990s began to appear
              it was difficult to find anything in the historical literature that seriously
              suggested that pre-contact American Indians possessed laws, much less had
              structures and systems. Even though legal anthropology had begun to have
              significant effects on legal history by the 1980s, the historical narrative of
              Native American jurispractices for the centuries prior to Chief Justice John
              Marshall’s “Indian” trilogy seemed more or less immune from its influence.1
              It is safe to say that before the mid-eighteenth century there was no Native
              American jurisprudence, either in a pan-Indian sense or among the tribes,
              1 Johnson v. M’Intosh, 21 U.S. 543 (1823); Cherokee Nation v. Georgia, 30 U.S. 1 (1830);
              Worcester v. Georgia, 31 U.S. 515 (1832).
              Cambridge Histories Online © Cambridge University Press, 2008
              The Law of Native Americans, to 1815 33
              nations, and confederacies that made up the various governments of indigenous
              people. But if jurisprudence is the philosophy of law, and if law itself is
              interwoven, sometimes inextricably, with morality, custom, or other means
              to force people to act in ways they would not otherwise choose, American
              Indians certainly possessed law. They may have had no way in which to
              disperse and debate philosophical principles, but they shared certain concepts
              that created a legal mentalit´e – what I here call “jurispractice” – that
              evolved as an indigenous way of acting legally, both within indigenous societies
              and among them, and that could, after European settlement, be communicated
              to colonial authorities whose systems were different. Indigenous
              jurispractices were founded on expectations of people that were not subject
              to arbitrariness or to change without formal discussion. They encompassed
              mechanisms for resolving disputes that were time-honored and consistent.
              They remedied wrongs, through restitution or punishment, in ways that
              were bound by rule. Deviation from these rules evoked objections from
              those who considered them unalterable.
              Some colonists understood that Indians had law. Others did not. Most
              European colonial regimes, however, gave some measure of acknowledgment
              to Indian expectations that seemed to them “legal,” or as custom that
              had to be enforced. What historians know of Native American law before
              1750 comes filtered largely through European sources. The Spanish in the
              southwest developed a system of imposing court days and elections on the
              Indians they conquered, but southwestern Indians dispensed justice in a way
              that combined Spanish process with Indian substance. They may have been
              forced to use the trappings of Spanish procedure to hold their courts, but
              the justice provided within was probably traditional. Modification would
              follow as Spanish law became known and understood. In New France, Jesuit
              missionaries frequently analogized Indian law to the old Germanic or Salic
              law, referring to Indian payments of wampumpeag for restitution as wergeld.
              But the Jesuits understood that they could not deduce Indian law by these
              means. Puritan authorities in the English colonies, meanwhile, held Indian
              law to resemble that of their primitive ancestors or as related to their own
              understandings of justice.
              Whether or not Europeans were interested in Indian jurispractice did
              not matter to Native Americans, who tried to make known their own
              expectations, even in colonial courts. By the eighteenth century some Indians,
              usually Christians, had become literate enough to produce works that
              detailed their own peoples’ customs, but often these writers did not use the
              language of law or of legal systems as much as that of custom and government.
              Whether this was an outgrowth of a Europeanized view that they
              had adopted or a matter of deliberate choice is hard to say.
              Cambridge Histories Online © Cambridge University Press, 2008
              34 Katherine A. Hermes
              Overall, what emerges from all these sources is an imperfect picture of
              Native American jurispractice, but one that is nevertheless quite recognizable
              as law.
              Tracing the evolution of jurispractice during the period after contact with
              Europeans requires recognition of several fundamental realities. First, there
              were many levels of contact. The 500 or more Native American tribes and
              nations that existed at the time of contact were not homogeneous. All had
              laws particular to their cultures that may or may not have been shared with
              others, even nearby native communities. Second, several layers of European
              and colonial government came first to interact with and then to overlie
              the heterogeneous sovereign entities of the tribes themselves. By 1815, the
              native peoples residing in the area of the modern United States had been
              subjected to the law of Spain, of France, and of England; to the law of the
              colonies and subsequently states that formed around them; to the law of
              the United States under the Articles of Confederation; and lastly to the
              law of the United States under the Constitution of 1787. As if these many
              entities, each claiming sovereignty or at least some degree of dominion
              over the native peoples in their territories, were not enough, the process of
              colonization itself created a divide between types of Indians that affected
              which law applied to them. Native peoples who maintained themselves in
              autonomous Indian communities retained a measure of self-government;
              in theory this distinguished them from individual Indians who lived in
              colonial towns and who therefore were under some form of colonial law.
              To understand the effect of contact on Indian jurispractice through the
              early nineteenth century – arguably one of the most complex legal periods of
              American and U.S. history – one must recognize three premises that acted
              both alternately and, occasionally, simultaneously on Native American law.
              The first was the belief held by Indians that their law was in their control.
              This premise was entirely true for the pre-contact period and often true
              thereafter. The second was the belief held by colonists, and later by federal
              and state officials, that Indians had only partial control of their law because
              Anglo-European law always trumped native law whenever they met. The
              third was an ideal on the part of Anglo-Europeans, shared as a belief by
              Indians, that justice should be accorded to Native Americans in the same
              way it was to whites. Despite the apparent accord on the matter, this third
              premise was problematic because so often native perceptions of justice were
              simply not the same as those of the colonists or the later federal government.
              Most native ideas of justice entailed some sort of reciprocity, which often
              took the form of a gift exchange, so that neither side would be bitter at the
              Some differences that arose in the contact period between colonists and
              Indians could be resolved out of court, but most – for example, disputes
              Cambridge Histories Online © Cambridge University Press, 2008
              The Law of Native Americans, to 1815 35
              over boundary lines, fencing, and animal trespass – could not. Communities
              in which mediation was a familiar legal mechanism for resolving disputes
              could implement the native idea of justice as reciprocity. Mostly, however,
              disputes were resolved antagonistically. The adversarial system of British
              law in particular resulted in great dissatisfaction for the Indians. Where law
              failed to be the mediating factor, trade became the sole “middle ground”
              between Europeans and Indians. Indians who violated European legal norms
              in the post-contact period were frequently viewed by colonists as military
              In the North Atlantic colonial world, Native Americans and European
              colonists negotiated the terms of the law that would exist in the space they
              co-inhabited. Each had their own laws that they followed in the spaces they
              did not share.2 There were, consequently, multiple legalities in the colonized
              North Atlantic world. But most overlapped, for the different peoples
              could not inhabit entirely separate spheres.3 Most of these coexisting legalities
              were found among native peoples, although not exclusively, because
              European regimes also differed among themselves, not only by national
              origin but by the particular colonial objectives of the settlers. The interpenetration
              of jurispractice among Native Americans was, however, complicated
              by circumstances that did not particularly confront Europeans –
              namely, the repeated ethnogenesis that tribes were forced to undergo as they
              attempted to make new social entities from what remained after disease,
              warfare, poverty, and trauma had all taken their toll. Rents and repairs in
              the social fabric supporting jurispractice were not the sole factor in the
              erosion of negotiated legal power sharing after contact. Cultural fusion or
              cultural hybridization, both forms of ethnogenesis, created new political
              identities necessary for the groups’ survival. In tribes whose composition
              changed, laws had to be renegotiated and legal customs altered.
              Over time, the possibility of maintaining some form of mutual creolized
              law in North America disintegrated. Although it is easy to attribute this
              disintegration largely to sheer power imbalances that favored the Europeans,
              the answer is not that simple. The mere existence of power imbalances did
              not mean that domination would necessarily result. Several cultural factors
              2 I refer to “space” and not territory, because the concept of territorial jurisdiction is
              problematic for Native Americans, as discussed below.
              3 “Legality [refers to] meanings, sources of authority, and cultural practices that are commonly
              recognized as legal, regardless of who employs them or for what ends.We conceive
              of legality as an emergent structure of social life that manifests itself in diverse places,
              including but not limited to formal institutional settings. Legality operates as both an
              interpretative framework and a set of resources with which and through which the social
              world is constituted.” Patricia Ewick and Susan Silbey. The Common Place of Law: Stories
              from Everyday Life (Chicago, 1998), 22–3.
              Cambridge Histories Online © Cambridge University Press, 2008
              36 Katherine A. Hermes
              in the European world had a bearing on the shift. First, even as the number
              of Indians decreased, settlers’ fear of them grew. The legal culture
              of the English settlements, meanwhile, became generally less hospitable
              to Native Americans as it became more “English”; as the common law
              ascended, English legalities became more adversarial, more formal, and
              less equitable. In addition, changes among the Indian population altered
              their participation in the system they helped create. Some Native Americans
              became increasingly hostile to Europeans and rejected cooperation
              altogether. Other Native Americans opted for accommodation or assimilation
              and began using the colonial court systems without the protections,
              demands, or special processes they had once reserved fo,r themselves. Among
              those who adapted to European ways there were gendered divisions in the
              use of laws and legal procedures. Women, perhaps because they tended to
              become domestic servants if they lived among colonists, sometimes saw
              European legal practices as expeditious, such as the writing of wills to
              transfer property and ensure inheritance. Men, in contrast, especially as
              time went on, became suspicious of European legal instruments that had
              so often proved deceptive, such as land deeds.
              Europeans, meanwhile, used their opportunities to dominate in ways that
              were not merely oppressive but might be described as casually abusive. The
              rules shifted from one town to the next and across colony lines. They were
              insisted on at some times, but not at others. Overall, European legalities
              were simply unpredictable. It became impossible for Native Americans to
              guess which protocols and processes might be required in colonial courts
              or when they had to resort to them, making it very difficult to maintain
              standing or to operate at all effectively within two separate yet overlapping
              spheres of jurispractice.
              One final factor must be mentioned before embarking on the story of
              Native American law and of how a negotiated realm of jurispractice arose
              and fell in North America as divergent legal ideas vied for space. It is crucial
              to touch on the effect of this evolutionary process on Anglo-American or
              U.S. law. The idea that Native Americans contributed anything to Anglo-
              American or U.S. law is hotly contested among scholars. Although it is
              a truism that in cross-cultural encounters neither side remains unchanged
              by the other, this does not mean that every aspect of one culture will be
              influenced by the other. Nevertheless, there are legal practices that historians
              and anthropologists, and even eighteenth-century contemporaries, suggest
              might have come to the present from the indigenous past in America.
              When Sarah Kemble Knight, a female traveler who in 1704 wondered in
              her journal whether the New England Indian custom of casually casting
              away one’s spouse might be responsible for the high rate of divorce among
              couples in Connecticut, she was not without grounds for her speculations.
              Cambridge Histories Online © Cambridge University Press, 2008
              The Law of Native Americans, to 1815 37
              When modern historians suggest that the Iroquois Confederacy might have
              contributed to the conception of a U.S. federal government, they should not
              be taken lightly. No conclusive proof of direct adoption from Native law
              to European law exists at the present time, but among scholars the inquiry
              has only just begun in earnest.
              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
              Before 1815, the Native Americans who lived within what would become
              the borders of the United States – east of the Mississippi River, south into
              Florida and Louisiana, north to the Canadian line, and along the Atlantic
              seaboard – were mainly of five general linguistic groups: Algonquian, Iroquois,
              Sioux, Inuit, and Muskhogean. These linguistic groups were not
              determinative of culture per se. Those who lived in the eastern woodlands,
              whether Algonquian or Siouan, had more in common than those who lived in
              the interior, in the Great Lakes region, or in the southeastern area below the
              Chesapeake. Nevertheless, language and law are intertwined, for language
              gives life to legal concepts. Social groupings also affect jurisdiction; that is,
              the right to claim power over territory, persons, or certain objects or subjects.
              Where the usual social grouping was the clan, owing some allegiance
              to a chief but living apart from a central chiefdom, law was institutionally
              less structured than in societies that had constructed confederacies of
              many tribal nations. Several such confederacies existed in North America
              in the period just before contact with Europeans. The most notable were
              the Powhatan Confederacy of the Chesapeake, the Iroquois Confederacy of
              the Great Lakes region, the Appalachian Confederacy, and the Cherokee
              Confederation of the Southeast.
              Cambridge Histories Online © Cambridge University Press, 2008
              38 Katherine A. Hermes
              The first visitors from Europe reported almost universally that they had
              found a people without laws. Visitors friendly to the natives accorded them
              a knowledge of the law of nature, but no system; for example, the Jesuit
              missionary Jean de Br´ebeuf described the Huron as “not without laws”
              and left a description of their system of punishment, which noted that
              they punished murderers according to a four-step ritual, with a specific
              incantation for each step. Skeptics believed them to be completely lawless.
              Another Jesuit, Paul Le Jeune, held that loyalty to a chief was the only reason
              the Montaignes were constrained from killing one another. “[T]he Indians
              have neither civil regulation, nor administrative offices, nor dignitaries, nor
              any positions of command,” he wrote.4
              A few reformers guessed that there had once been a legal system among
              natives, but that it had been destroyed. In a 1553 letter to Charles V, Louis de
              Le´on Romano, an administrator of the viceroyalty of New Spain, described
              native society as “without order and governance whatever.” Yet, Romano
              insisted this was “because the system of government has been turned so
              much to the opposite of what it once was. For the sort of people they are,
              their former system of government was the best that ever [a] nation had,
              except for the salvation of their souls.” Indeed, the indigenous people in
              North America did have laws and legal systems, just as they had religious
              beliefs and practices that were also invisible to many European observers.
              Some systems were more complex than others. Their languages demonstrate
              some of the legal concepts Native Americans held, though one cannot
              infer too much from the existence of a word if there is no evidence as to what
              natives really understood it to mean. (Frequently, that evidence is missing.)
              The Algonquians had certain words that signified the practice of law. The
              root “tepa” or “tipa” combined with “wa,” “wew,” or “kew” meant judging
              or measuring something; it could even mean to control. That this word for
              judge probably had some legal meaning can be inferred from the words that
              surround it: in Cree, an Algonquian language, the expression “tipeyeimew”
              meant “he rules over him.” In Nahuatl there were words to express such
              technical and complex ideas as land and water rights, as well as words for
              many types of rulers. The Nahuatl word “altepetl” expressed the idea of
              “city-state.” The Muskhogean tribes include, among others, the Choctaw,
              Creeks, Chickasaws, Seminoles, and Apalachi. The Cherokee, who would
              be recognized by Europeans as one of the “Five Civilized Tribes,” spoke
              an Iroquois dialect. Whether the Cherokee linguistic difference had any
              enabling effect on their later development of an alphabet and a constitution
              is a matter for speculation, but the Iroquois language and culture seem to
              have facilitated certain political associations.
              4 Br´ebeuf, Jesuit Relations, 10: 210–35; Le Jeune, Jesuit Relations, 6:228–35.
              Cambridge Histories Online © Cambridge University Press, 2008
              The Law of Native Americans, to 1815 39
              The Confederacies make up an important part of the legal landscape
              for native North America. At first viewed by historians primarily as political
              entities, the confederacies are currently seen as economic and military
              alliances. They were also entities that maintained legal structures and
              enforced legal customs among their members. Among the eastern tribal
              nations such alliances were common, both as a means of protection and
              a system of tribute. The first alliance encountered by Europeans was the
              Iroquois Confederacy, formed about 1390, which consisted of five nations:
              the Seneca, Oneida, Mohawk, Cayuga, and Onondaga. The Iroquois Confederacy
              spread across the Ohio Valley, up toward the Great Lakes, and into
              the St. Lawrence River Valley around present-day Quebec. In 1715, the
              Tuscaroras of Virginia moved northward and joined the Iroquois Confederacy
              when English settlement across the Blue Ridge Mountains made it too
              difficult to remain in that region.
              The Iroquois Confederacy had a very distinct system of law when compared
              with other eastern cultures. The confederacy itself was a diplomatic
              and military bond, which later evolved into an economic unit as well. The
              Iroquois depended on frequent meetings, spending considerable time in
              council. Groupings for council were determined by locality, sex, age, and
              the specific question at hand. Each had its own protocol and devices for
              gaining consensus.
              The Hurons, like most northern Indians, also made decisions by council.
              In some villages the council met daily. There were a set of elders who
              garnered respect at these meetings, but the forums were open. Huron councils
              exerted little control over individuals, beyond what was necessary to
              keep social order. The councils had a formal protocol, and even the oratory
              was procedural, with each speaker summarizing the issue and arguments
              of the previous speaker. In a non-literate society, this method could have
              been a means to ensure that everyone understood the issues and arguments;
              listening was an essential quality. Br´ebeuf admired the practice, which he
              thought gave clarity to the proceedings and made it easy for a stranger to
              understand what was going on.
              Whatever structure of legal decision making was in place, the most
              important legal concept among Native Americans was the principle of
              reciprocity. Reciprocity was first recognized as a principle common among
              native peoples by early twentieth- century anthropologists, although somewhat
              anachronistically and without any historical particularism. In fact, the
              principle had important variations among Native Americans in the colonial
              period. Moreover, although it is true that the principle of reciprocity was
              used in other areas of society, from religion to economics, its use as a legal
              principle was particularly distinctive among the several tribes, nations, and
              Cambridge Histories Online © Cambridge University Press, 2008
              40 Katherine A. Hermes
              For the native peoples, the practice of give-and-take transcended legal
              boundaries and existed as an economic and social value. In the legal realm,
              however, it meant that reparation could be made for wrongdoing. It also
              meant that, when a wrong occurred, all parties took away something so
              that, in most cases, no one bore the entire burden of the legal infraction.
              Europeans found Indian legal customs unfathomable when they observed
              such processes at work, but they also accepted that the core value of reciprocity
              corresponded to their own systems of law. For Puritans and legal
              reformers in New England, the value in reciprocity was that it allowed the
              law to be a mediator between parties rather than an adversarial tool. For
              the French and the Dutch, both of which had civil law rather than common
              law systems, justice was less about moral absolutes and more about fairness.
              Thus, in the period of contact, from about 1600 to 1675, all four interacting
              legal systems were operating on an assumption that justice could be and
              should be equal between all parties.
              An example of reciprocity in native jurispractice was the concept of restitution
              for harm. In the current Anglo-American system of law, tort law and
              criminal law present two different types of legal redress for dealing with
              harm.We now think of the state as the complaining party in criminal cases,
              though even in England in the seventeenth century, individuals could bring
              private criminal prosecutions. In Indian North America few tribal nations
              had a concept that distinguished between criminal and civil offenses as
              precisely as English law, but most had a system that involved the group
              in seeking redress for the individual and determining whether both the
              individual and the group needed compensation for the harm. The concept
              of harm to the group, even for an action against an individual, was commonplace.
              The means of settling the matter between the offending parties,
              also defined according to complex norms involving ideas about who was
              responsible – chief and tribe or individual – differed from region to region.
              At the core, however, was a strong belief common to most societies that
              harm to an individual member was harm to all and that the individual
              should not have to face his victimization alone. Leaders offered communal
              Embodying the principle of reciprocity, in most Indian communities a
              designated person served as peacemaker, a type of mediator who was well
              versed in community norms and knew how to restore harmony. The role
              of the peacemaker was critical to the community. In the Iroquois nations,
              peacemakers were part of the formal judicial system. In the southwest, they
              tended to have less formal roles, being chosen by the parties rather than as
              part of the formal process.
              The Iroquois believed in a system of law that the Jesuits who first encountered
              them described, as we have seen, as analogous to wergeld, the ancient
              Cambridge Histories Online © Cambridge University Press, 2008
              The Law of Native Americans, to 1815 41
              German law that exacted material goods for wrongs. To modern eyes, the
              distinction between tort law and criminal law seems blurred by the Iroquois,
              and it is easy to assume that they had no distinction between a crime
              against the state, as it were, and a personal injury. In fact that was not
              the case. The payments that could be demanded depended very much on
              whether the transgression was against an individual or the tribe as a community.
              The homicide of a sachem brought warfare and sanctions against
              the people from whom the killer came, whether a clan within the same
              tribe or another nation. If another nation was involved, captives taken from
              the wrongdoer’s people were either tortured and killed or adopted into the
              avenging tribe. This practice, known as the mourning war, became more
              prevalent as time went on, compensating the tribe that had been victimized
              not only for murder but also for losses from disease, warfare, or hardship
              once the Europeans settled in North America.
              Other wrongs, such as the killing of a person by accident or negligence,
              or a theft of a valuable item, were punished by demanding payment of some
              kind in relation to the level of harm done. Furs and other goods such as
              wampumbelts from the coast compensated victims. Usually a council set the
              payment, and if there was any dispute between the parties as to the justice
              of the demanded amount, it would become the subject of negotiation.
              Yet, the Iroquois legal system was not wergeld in any strict sense. That was
              merely the closest European analogy the Jesuits could think of. Priests and
              travelers described a system of rules that carried specific penalties for specific
              wrongs. Elaborate rules governed behavior, but the principle that dictated
              most judgments was reciprocity. Justice was usually satisfied by putting the
              world back in balance. Yet, the Iroquois went further than many eastern
              woodland tribes in their scale of punishments. They included torture as a
              legitimate punishment, something most Algonquian tribes did not.
              Jean de Br´ebeuf’s 1636 Relation gives us perhaps the fullest account of
              the government of the Hurons. Br´ebeuf was familiar with the laws of many
              civilizations, including the Chinese and Japanese, with whom the Jesuits
              had missions, and so he had a basis for comparison outside European law.
              He thought the Huron primitive, but not without civilization. The system
              he described eschewed private vengeance but punished wrongdoers.
              Vengeance, he remarked, was the “blackest” crime, even worse than murder.
              The rule of law could never be thwarted without incurring terrible
              punishments. Br´ebeuf commented that the Indians of his time were not
              as strict against murderers as in former times, suggesting that the death
              penalty was once exacted on murderers. The relative of a murdered person
              brought the prosecution to the village of the alleged killer. The family was
              paid in gifts, sixty to be precise. Each series of presents had meaning and
              was apparently stipulated by law. The ritual was designed to restore peace
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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
              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.
              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
              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
              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.
              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
              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
              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
              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
              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.
              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 “law.” That invisibility distinguishes law from other subsets
              of culture. Structures of wood are recognizable, and sometimes even
              structures of governance are dimly recognized as something akin to what
              the observer knows: a werowance is like a prince, the mamanatowick like a
              king or an emperor. Law, though, is something one can only know by the
              deepest understanding of a society. Even law’s ritual practices, or legal procedures,
              can be better understood sooner than the law itself. The historical
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              The Law of Native Americans, to 1815 61
              understanding of pre-literate legal culture is essentially the attempt to
              understand its jurispractice, its recognizable expression of legal ideas
              through the ways in which they are practiced by a society. Jurispractice
              is, indeed, all we can know about the law of the Native Americans who
              lived in the pre-contact and contact periods. We can infer from that practice
              that they may have had a philosophy of law as well as a body of laws,
              but we will never possess it in the way we can possess a copy of jurisprudential
              treatises by Samuel Pufendorf or even the ever-practical Blackstone’s
              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
              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.
              Cambridge Histories Online © Cambridge University Press, 2008
              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.
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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
              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
              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 “laws and ordinances, not contrary to the laws
              of Ireland.”4 The Crown granted Gilbert letters patent with lawmaking
              authority limited by the laws of England. By the late sixteenth century,
              corporations in general were understood to be similarly bound.
              Gilbert kept alive the idea of lawmaking authority limited by the laws
              of England while aspiring to create a more feudal-style settlement in Newfoundland
              where English fisheries for catching and drying salt cod existed.
              In 1578, he obtained letters patent that gave him “full and meere power
              and authoritie to correct, punish, pardon, governe and rule” with laws “for
              the better governement of the said people,” but “as neere as conveniently
              may, agreeable to the forme of the lawes & pollicy of England.” Gilbert
              claimed the area for the Crown in 1583, but his death on the voyage home
              ended his scheme.
              We can conceptualize this formula of lawmaking authority bounded by
              the laws of England as a constitutionally limited delegation of governance.
              The formula appeared in letters patent and charters, as well as in royal
              instructions, commissions, internal delegations of authority, gubernatorial
              correspondence, colonial laws, court proceedings, and appeals to the Privy
              Council. The precise language varied, as did the various types of colonial
              lawmaking that were contemplated: laws, statutes, ordinances, constitutions,
              acts, orders, bylaws, rules, methods, directions, instructions, as well as
              court proceedings, procedures, and penalties. Common variations included
              “not contrary,” “be as near as conveniently may, agreeable,” and “not repugnant.”
              Many versions included a repugnancy principle (colonial laws could
              4 R,equests of SirWarham St. Leger . . . Humphrey Gilbert, et al., The Voyages and Colonising
              Enterprises of Sir Humphrey Gilbert, ed. David Beers Quinn (Hakluyt Society, 1940; reprint,
              Nendeln, 1967), 1: 122–124; 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 “laws of England” appeared. The phrase included “laws
              and statutes,” but “government,” “customs,” “policy,” “proceedings,” and
              “rights” also might appear. Eventually the formula was understood to bind
              even self-authorized settlements: the 1641 Piscataqua River settlers gave
              their freemen lawmaking authority “not repugnant to the laws of England.”
              Although the corporate form offered the capacity to raise funds, adapting
              the corporate governance of the trading companies to transatlantic settlements
              was a different story, as Gilbert’s half-brother, Sir Walter Ralegh
              (Raleigh), discovered in attempting to use the corporation to govern a settlement.
              Raleigh’s first attempt in 1585 to settle Roanoke Island failed within
              a year. The letters patent had granted constitutionally limited lawmaking
              authority, but had made no provision for specific forms of governance. In his
              second attempt, Raleigh delegated his authority to a “Bodye pollitique &
              Corporate,” the governor and assistants of the City of Raleigh in Virginia.5
              Reflecting the settlement’s intended future social hierarchy, the governor,
              John White, and the twelve assistants were each given a coat of arms. Corporate
              governance was divided, with three assistants remaining in England
              while the others and approximately 100 men, women, and children sailed to
              Roanoke. The need for additional supplies brought White back to England
              in 1587, but the fragmented corporate structure and the following year’s
              fight against the Armada foiled fundraising efforts. A new company was
              created to raise funds for a relief effort in 1590, but by then the settlement
              had vanished. Whatever the fate of the settlers, Raleigh’s colleague Thomas
              Hariot pointed out that there was “noe especiall example” of a corporation
              for planting that had “proued well.”6
              Difficulties with the corporate form continued. In 1606, James I granted
              letters patent for two companies (the Virginia Company of London and the
              Virginia Company of Plymouth) and two colonies. The Plymouth Company
              undertook only one venture. In 1607, Sir Ferdinando Gorges and George
              Popham organized 120 settlers to land in Sagadahoc (Maine). The corporate
              structure remained in England. Difficulties with supplies, bad weather, and,
              perhaps most important, the governor’s return to England ended the colony
              a year later. Another small corporation, the London and Bristol Company,
              fared no better. Its settlement under John Guy at Cuper’s Cove, Newfoundland,
              in 1610 declined after Guy returned to England several years later. By
              1620, disenchantment with the corporate form led the Plymouth arm of
              5 The Roanoke Voyages, 2: 508.
              6 “Thomas Hariot’s Notes on Corporations for Trade and Plantations” (n.d.) in The Roanoke
              Voyages, 1: 389.
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              70 Mary Sarah Bilder
              the Virginia Company to reorganize as the Council for New England with
              authority transferred to a small group of titled lords.
              Even when a settlement survived, governing it through a London-based
              corporation proved difficult. The Virginia Company of London encountered
              repeated governance problems. The initial letters patent created a
              multi-layered delegation of authority: a Crown-appointed London council,
              a resident council, and a requirement that the council’s laws be signed by the
              Crown. In 1607, 104 men set forth to found Jamestown. In barely enough
              time for the news to travel to England and back, never mind any laws
              to be approved, disease and starvation reduced the colony by two-thirds.
              In 1609, the company reincorporated with a single London council that
              held constitutionally limited lawmaking authority and was to delegate this
              authority to an appointed governor. Under a strict martial code, the 1611
              Lawes Divine, Morall and Martiall, &c., Governors Sir Thomas Gates and
              Sir Thomas Dale stabilized the settlement. But their discretionary authority
              seemed contrary to the corporate form, so in 1612, new letters patent
              returned lawmaking authority to the London corporation’s general court.
              Now, the Virginia settlers were left with insufficient discretion. In 1618,
              the Company issued a “greate Charter or commission of privileges, orders,
              and laws,” delegating its authority to a subsidiary political corporation with
              a council and assembly of elected representatives.7 The first assembly met
              at Jamestown in July 1619. According to the 1621 ordinance, laws were to
              be ratified and confirmed in England and the assembly required “to imitate
              and follow the Policy of the Form of Government, Laws, Customs, and
              Manner of Trial, and other Administration of Justice, used in the Realm
              of England, as near as may be, even as ourselves, by his Majesty’s Letters
              Patent, are required.”
              This corporation-within-a-corporation was, theoretically, a coherent
              model for London-based governance, but the only settlement actually governed
              that way was Bermuda. In 1612, a subsidiary venture of the Virginia
              Company settled Bermuda and incorporated in 1615 as the London-based
              Governor and Company of the Somer Islands (the Bermuda Company). In
              1619, Bermuda followed Virginia in encouraging settlement with company
              instructions to establish an assembly for local governance with the power to
              make laws not “repugnant to the laws of England,” the governor’s instructions,
              or any company laws and subject to confirmation by the company.
              The assembly convened in 1620, and until 1684 Bermuda was governed as
              a corporation-within-a-corporation.
              No other London-based corporation governed a settlement successfully.
              The Virginia Company’s financial difficulties were a constant liability for
              7 Susan Myra Kingsbury, The Records of the Virginia Company of London (Washington, 1906),
              3: 158.
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              English Settlement and Local Governance 71
              the settlement, and in 1624 the Crown repealed its letters patent by writ
              of quo warranto, a procedure used to revoke borough corporate charters. Quo
              warranto (“by what authority”) accused the corporation of acting outside its
              charter. In 1625, the new King, Charles I, proclaimed that the government
              of Virginia would “depend upon Our Selfe.”8 The governor became a Crown
              appointee bound by Crown instructions. Yet, although the corporation no
              longer existed and the assembly’s legal status was in some doubt, corporate
              practices continued. In 1629, answers to a set of propositions seemed to
              confirm authorization of a “grand assembly to ordain laws.”9 In 1639,
              Crown instructions at last specifically acknowledged that the governor and
              assembly held lawmaking authority so long as its laws were as near as
              may be to the laws of England. Virginia became a royal colony after 1676,
              when that designation came to signify a new institutional form that would
              become dominant in the English settlements. Before then, Virginia looked
              more like a corporate colony in which the Crown had simply substituted
              itself for the London corporation.
              Virginia was not the only settlement in which the maintenance of corporate
              governance practices – 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 “liberty of Conscience.” When Portsmouth and Newport later
              adopted the corporate practices of a governor, deputy governor, and freemen,
              they insisted on the absence of religious limitation, declaring “the Government
              which this Bodie Politick doth attend . . . is a DEMOCRACIE, or
              Popular Government.” The “Body of Freemen orderly assembled” had the
              power “to make or constitute Just Lawes.” The governmental authority
              of the corporation was separated from particular governance practices in
              Rhode Island’s “free Charter of Civil Incorporation and Government,” the
              first to incorporate a preexisting, self-governed settlement. The Parliamentary
              commissioners granting the 1644 charter gave the towns the “full
              Power and Authority to rule themselves” by “voluntary consent of all, or
              the greater Part of them” as was “most suitable to their Estate and Condition.”
              The towns chose to elect a president, four assistants, and deputies. In
              1647, the assembly emphasized the nonsectarian nature of its government
              as “DEMOCRATICALL . . . a Government held by the free and voluntarie
              consent of all, or the greater parte of the free Inhabitants.”10
              By the 1660s, corporate governance practices and a corporate charter
              or letters patent had come to symbolize constitutionally limited selfgovernance.
              This understanding led to the incorporation of Connecticut
              and Rhode Island. With the Restoration of Charles II, both colonies grew
              concerned about their political authority. Connecticut had no authorizing
              document and, in 1662, quickly obtained letters patent from Charles II.
              The towns became the “Body Corporate and politique” of the “Governor
              and Company of the English colony of Connecticut.” Rhode Island thought
              it advisable to replace its Parliamentary charter with new letters patent –
              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 “livlie experiment” in religious liberty. Rhode
              Island was now “Company, Corporation and Collony.”11
              The incorporation of Rhode Island and Connecticut meant formal recognition
              of the institution of the corporation colony: a political document,
              explicitly called a charter, incorporated the government (the Governor
              and Company), corporate officers (governor and assistants) were elected by
              freemen, and the assembly held lawmaking authority limited by the laws
              of England. In theory, incorporation placed the settlements under English
              law, limited their lawmaking authority, and made them vulnerable to quo
              warranto proceedings. In reality, as Edward Randolph criticized, incorporation
              made the New England colonies “Independent Governm[en]ts.”12
              Self-governing corporate authority on the far side of the Atlantic circumvented
              English corporate laws and English Crown control. After 1663, no
              more corporation colonies were created.
              Seeds of American institutions can be found in this story of corporate
              governance – 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
              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.
              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
              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
              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
              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
              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
              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
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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.
              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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              84 Mary Sarah Bilder
              but the 1606 Virginia letters patent had no such reference, whereas the
              1607 Sagadahoc venture had a president. The term “governor” often seemed
              generic, as in the “Governor or principal Officer” of the 1609Virginia letters
              patent. By the 1630s, however, governor was becoming the preferred term
              in corporate and proprietary colonies, and by the Restoration it was the
              dominant term. Almost all post-Restoration charters had a governor, and
              later Crown instructions named appointees as the Governor in Chief.
              Historians’ focus on the legislature has left the governor’s importance
              often unstated. The governor symbolized the location of supreme authority
              in the settlement. In the colonies that followed corporate practices, the
              inhabitants selected the governor. In Plymouth, the men “chose, or rather
              confirmed, Mr. John Carver (a man godly and well approved amongst them)
              their Governor for that year.”18 In Massachusetts, Connecticut, and Rhode
              Island, the general assembly elected the governor. In proprietary colonies,
              the proprietor appointed the governor or held the position himself. The
              Crown’s gradual attempt to acquire more authority over the colonies concentrated
              on controlling the governor. In the 1660s, Charles II unsuccessfully
              encouraged colonies to request new charters with Crown gubernatorial
              appointment. Later, James II made Edmund Andros Captain General and
              Governor in Chief of the Dominion of New England. Under William and
              Mary, the 1696 Navigation Act required that governors nominated by
              proprietors be approved by the Crown. By the 1720s, only Rhode Island,
              Connecticut, and, to a certain degree, Pennsylvania remained outside this
              system of royal governor appointment and control.
              Selecting the governor symbolically demonstrated authority and reinforced
              loyalty to that authority. Into the eighteenth century, corporation
              colonies repeatedly elected the same few prominent local residents who had
              a vested interest in the success of the colony, often because of their large
              landholdings or extensive mercantile assets. In the proprietaries, appointments
              reflected varying theories of authority. Maryland favored Calvert
              family members. Pennsylvania chose English orWelsh officers and colonial
              administrators, though many switched loyalties and died in the colony. In
              Virginia, early Crown appointments favored local residents, but by the late
              1670s Crown governors usually came from the English military and other
              colonies. Francis Nicholson, for example, had served in the English army
              and then in the Dominion of New England. Appointed lieutenant governor
              of Virginia (1690–2), Nicholson then became Governor of Maryland
              (1694–8), Virginia (1698–1705), and South Carolina (1721–5). Although
              New England governors’ loyalties often remained in the colony, southern
              18William Bradford, Of Plymouth Plantation, 1620–1647, ed. Samuel Eliot Morrison (New
              York, 1952), 76.
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              English Settlement and Local Governance 85
              royal governors like Nicholson began to exemplify the emergence of career
              interests in the English colonial system and the development of aspirations
              for a uniform colonial policy.
              Governors rarely acted al,one, instead serving with a deputy and council.
              The office of deputy governor or lieutenant governor was ill defined, its
              duties ambiguous and varied across the colonies. The council’s precursors
              lay in the broad array of English advisory institutions, ranging from borough
              councils to the trading company councils to the Privy Council. Certain New
              England settlements initially used the term magistrate for council members,
              but in corporation colonies the term assistant predominated. Councilor, with
              its English governmental associations, was preferred in the proprietaries.
              With the exception of Massachusetts, in colonies under Crown control,
              governors nominated councils of twelve inhabitants. Royal instructions
              required these members “be men of good life and well affected to our
              government and of good estates and abilities and not necessitous persons or
              much in debt.” The council advised the governor, sat as a court, composed
              the upper house in bicameral assemblies, and consulted in certain colonies
              on judicial and other appointments.
              The office of governor was all important. Early governors physically
              founded their settlements; their absence often doomed the settlement. The
              thirty-six instructions given to Virginia Governor Sir Thomas Gates in
              1609 indicate the extensive expectations placed on governors. Gates was
              to sail the fleet to Jamestown; take control of public records; appoint,
              consult, and dismiss counselors; ensure worship of the Church of England;
              befriend and try to convert the native peoples; use martial law and chancery
              power; make laws; settle a principal seat, build a fort and additional towns;
              encourage trade; oversee employment; search out additional commodities;
              oversee meals; keep track of letters and instructions from England; listen
              to all opinions and objections; and keep secret sealed documents.
              Instructions to later royal governors demonstrate the same breadth of
              authority and obligation. They held the power of appointment, oath, and
              oversight over other governmental branches. They were not to assent to laws
              that circumvented disallowance requirements, affected trade or shipping, or
              prejudiced the prerogative or property of subjects. They had discretionary
              powers ranging from the discouragement of drunkenness to the licensing of
              printing presses. They oversaw escheats, collected quitrents, and supervised
              the value of currency. In commerce, they assisted admiralty and customs
              officers, aided the royal navy (for example, by enforcing laws to preserve
              trees for masts), enforced the laws regarding the plantations trade, and
              encouraged the Royal African Company’s monopoly over the slave trade.
              They were heads of the military, empowered to assist other colonies, but not
              to declare war except against “Indians upon emergencies.” They promoted
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              86 Mary Sarah Bilder
              the established Church of England, encouraged the conversion of “Negroes
              and Indians to the Christian religion,” and permitted religious liberty of
              various degrees (in some colonies without restriction; in others to all but
              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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              English Settlement and Local Governance 87
              The Assembly
              We should not take the existence of the assembly for granted, for the idea
              that the governed should participate in governance was somewhat unusual.
              In English boroughs and palatines, the assembled governing body was usually
              referred to as a council. An assembly was a more representative gathering
              with self-governing authority. Early English trading corporations held
              assemblies (general courts) to enact bylaws; for example, the Presbyterian
              Church of Scotland had been organized by a general assembly. In 1619, the
              first colonial lawmaking gathering in Virginia adopted the term, referring
              to itself as a “General assembly.” Specific local variants appeared (Virginia
              had a House of Burgesses and Massachusetts Bay had a General Court) but
              most colonies and Crown instructions referred to a general assembly. The
              term remained ambiguous, however, with assembly referring to the assembly
              of governor, assistants, and deputies, as well as only the lower branch of
              the legislature. Over the seventeenth century, the assembly in both senses
              established its existence by gaining lawmaking authority.
              Once assemblies began to appear, they quickly became part of colonial
              government. In Virginia and Bermuda, the assemblies that convened in
              1619 and 1620 likely brought some stability to local relationships. The
              Maryland proprietary charter provided for an assembly of freemen that
              would help frame laws; such an assembly met possibly as early as 1635.
              In 1639, the Crown officially recognized the Virginia assembly in royal
              instructions. Parliamentary control during the Interregnum strengthened
              colonial assemblies, and the Restoration did not have a significant adverse
              effect on them. James, Duke of York, did not include an assembly in his
              plans for New York, but one met in 1683. By then, Crown instructions
              generally assumed the presence of assemblies.
              As representative institutions, assembly composition ran the theoretical
              gamut. The early freemen in Massachusetts Bay were also largely officers; the
              general court thus tended to duplicate the council. In Maryland, all freemen
              were initially summoned to the assembly. The need to make government
              work for the inhabitants altered both approaches. In Massachusetts, the
              complaints of ordinary landholders led to enlargement of the class of freemen
              electing deputies. In Maryland, freemen desiring to avoid attendance at the
              assembly developed an informal proxy system among themselves. Maryland
              would shrink participation to elected representatives. By the 1640s, representatives
              in most settlements were elected from towns or other defined
              localities. Inhabitants’ concerns about governance also prompted a shift to
              bicameralism, which was dominant by the end of the seventeenth century.
              Representatives of towns, burgesses, or counties sat in the lower house;
              members of the governor’s council sat in the upper house. Pennsylvania
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              88 Mary Sarah Bilder
              remained an exception with an explicitly unicameral structure. Regardless
              of structure, elections were seldom contested before the end of the seventeenth
              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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              English Settlement and Local Governance 89
              known as the Committee for Trade and Plantations (the Lords of Trade). At
              first the committee aspired to a direct role in colonial lawmaking. Since the
              1660s, laws had been sent from Barbados, Jamaica, the Leeward Islands,
              and, on occasion, Virginia for sporadic review; the committee now proposed
              drafting laws for the Jamaican assembly itself. The effort failed and
              by 1680 the English attorney general had confirmed that Jamaica would
              be governed by laws made by its own assembly. The committee settled for
              a supervisory role. Instructions to the Caribbean and Virginia governors
              and to John Cutt, president of New Hampshire, required the transmission
              of laws so that the Privy Council could review them. By the 1680s,
              the committee was also hearing appeals from the colonies. In 1681, the
              Pennsylvania charter became the first both to require transmission of laws
              and to reserve explicitly the Crown’s right to hear appeals. Between 1682
              and 1692, such supervision spread by royal instruction and new charter to
              Virginia, the Dominion of New England, Massachusetts, New Hampshire,
              and Maryland.
              At the turn of the century, the Privy Council began to decide in specific
              instances whether colonial laws and customs fell outside the bounds
              of an imperial conception of English law and customs. In 1696, it created
              a new advisory committee of the whole, the Committee for Hearing
              Appeals from the Plantations. The Crown established the separate Lords
              Commissioners for Trade and Plantations (the Board of Trade), composed
              of state officers (initially the chancellor, president, treasurer, high admiral,
              secretary of state, and chancellor of the exchequer) and eight appointed and
              paid commissioners, usually members of Parliament, to advise as to colonial
              laws among other duties. The approach proved effective and would remain
              largely in place through the eighteenth century.
              Review of colonial legislation and appeals was an intriguing approach
              to supervising colonial law. The Crown could claim ultimate authority and
              ensure uniformity while still permitting local authorities to pass legislation,
              decide cases, and diverge from English law in the first instance. After
              1690, more than 8,500 acts were submitted for review from the mainland
              colonies, with approximately 470 disallowed. Between 1670 and the
              Revolution, around 250 cases were appealed from the mainland American
              colonies, with Massachusetts, Rhode Island, and Virginia accounting for the
              largest number. Laws found repugnant to the laws of England or contrary
              to the royal prerogative touched on inheritance (diminishing primogeniture,
              limiting dower rights, treating jointly held property as tenancy in
              common); escheats to the Crown; relief of debtors; religious establishment
              and religious toleration (or the lack thereof); assembly authority and powers;
              regulation of attorneys; creation of courts (particularly equity, chancery, and
              admiralty courts), juries, and court procedures; trade and piracy regulation;
              and the creation of ports and regulation of custom officers.Yet, most colonial
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              90 Mary Sarah Bilder
              laws remained in force without any action from the Privy Council. Colonial
              legislatures nonetheless manipulated disallowance by passing temporary
              laws or reenacting substantially similar laws, notwithstanding Crown
              instructions intended to prevent such evasions.
              Appeals of cases provided another avenue for Privy Council decision
              making as to whether a colony’s law was repugnant to the laws of England
              or a permissible departure for local circumstances, although it was
              more costly and dependent on individual initiative. In theory the Privy
              Council heard appeals as a committee of the whole. In reality the appeal
              was usually assigned to a smaller group, including either the Chief Justice
              of King’s Bench or Common Pleas. Colonists retained English solicitors
              and Crown law officers (often the Solicitor or Attorney General) to argue
              the appeal. Between 1696 and 1720, civil, criminal, probate, and viceadmiralty
              appeals were brought from Massachusetts, New York, Virginia,
              Connecticut, Rhode Island, Maryland, New Hampshire, South Carolina,
              New Jersey, and Pennsylvania.
              Theoretically, Rhode Island and Connecticut stood outside this system.
              Their corporate charters did not authorize Privy Council review or
              appeals. Throughout the 1690s the Crown and various colonists repeatedly
              tried to bring the colonies under the review regime, only to receive messy
              manuscript copies of laws from Rhode Island and a twenty-year-old edition
              of Connecticut’s statutes. Eventually, in 1715, the English Attorney General
              declared that the two colonies had no obligation under their charters to
              transmit laws. In the 1730s, however, Connecticut would do so voluntarily.
              The colonies were less successful at barring appeals, the Board of Trade proclaiming
              that appeals were an inherent right of the Crown. Despite local
              legislative efforts to discourage them, appeals were heard from Connecticut
              and Rhode Island. Appeals became particularly prevalent in Rhode Island
              as the only path for review of laws.
              By the eighteenth century, the Privy Council had become the third
              branch of colonial government. Law – 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.
              The manner and offices of colonial government depended on a culture of law.
              The term legal culture has become ubiquitous in contemporary scholarship
              even as the concept itself remains elusive. Rather than attempt a definition,
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              English Settlement and Local Governance 91
              I want instead to plumb a component of colonial legal culture – 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
              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
              This struggle produced the oft-claimed ancestor of modern supreme
              courts, the Superior Court of Judicature, comprised of an appointed chief
              justice and associate justices. This transformation should not be misconstrued
              as the separation of the judicial function from colony government; to
              the contrary, it was an effort to retain Crown control of the judiciary, as well
              as an acknowledgment of the time constraints placed on the governor and
              council by growth of the colonies. The new court structure appeared in the
              Dominion of New England in 1687 and in 1681 in Jamaican legislation.
              After 1691, Superior Courts of Judicature soon sat with judges appointed
              by the royal governor in New York (technically the Supreme Court of Judicature),
              Massachusetts, New Hampshire, and New Jersey. A Superior Court
              of Judicature heard appeals and had original jurisdiction in cases involving
              title to land or significant amounts of money. County sessions and inferior
              courts of common pleas heard smaller cases. This new terminology spread
              to Connecticut (1711) and Rhode Island (1729), although the legislature
              retained the power to appoint justices. Although Pennsylvania adopted a
              Supreme Court in 1722, most southern colonies retained the names of general
              or provincial courts and left power in the governor and council, either
              directly or by appeal.
              The absence of published court opinions reinforced the perception that
              courts were not a separate branch. Most proceedings remained solely of
              local interest and included prosecutions for fornication, disputes over title
              to land, disagreements over inheritances, contested debts, and accusations
              of slander. Knowledge of the court was acquired by being in court, relying
              on the oral or written reports of others, and reading the manuscript records.
              When court proceedings appeared in print they reflected public interest in
              the substantive matter and a printer’s hope for financial return. William
              Bradford printed the court proceedings in theWest Jersey trial and execution
              of Thomas Lutherland for murder under the title BloodWill Out (1692),
              as well as legal materials relating to a controversy involving himself and
              Quaker George Keith. Other early printed legal materials include Cotton
              Mather’s account of five of the Salem witch trials, accounts of Jacob Leisler’s
              rebellion, Nicholas Bayard’s trial for treason, and a significant number of
              piracy trials. Apparently unique was the printing in 1720 of copies of the
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              English Settlement and Local Governance 93
              briefs in a Massachusetts civil case, Nathaniel Matson v. Nathaniel Thomas,
              involving the question whether Massachusetts had to follow the English
              law of primogeniture and entail. Descriptions of courts nonetheless occurred
              in official correspondence and printed descriptions and discussions of the
              colonies. From a transatlantic perspective, what the courts governed seemed
              less important than who governed them.
              Legal Practitioners
              We have tended to assume that relatively few lawyers were to be found in the
              seventeenth-century colonies. Certainly most criminal defendants entered
              the court unrepresented, and many litigants in lower courts proceeded
              without attorneys. In 1705, Robert Beverley of Virginia wrote, “Every one
              that pleases, may plead his own Cause, or else his Friends for him, there
              being no restraint in that case, nor any licensed Practitioners in the Law.”
              Yet, attorneys, legal practitioners, and other legal literates abounded in the
              colonies. Their presence necessitates reconsideration of the seventeenthcentury
              colonies as a world of law without lawyers.
              Throughout this period, attorney or practitioner of law was the preferred
              label; lawyer was the preferred epithet. In every colony, court records,
              statutes, letters, and other documents demonstrate that people labeled
              as “attorneys” appeared early and often. In England, the term attorney
              had become ubiquitous between 1550 and 1650. Practitioner referred to
              these attorneys, along with clerks and solicitors. Attorneys conducted routine
              matters in central, local, and chancery courts; composed pleadings;
              gave advice; prepared litigation; and served as clerks of the court. Early
              seventeenth-century law books were aimed at these legal practitioners. Over
              the course of the early seventeenth century, attorneys became differentiated
              from barristers. Barristers were more likely to be from elite social circles,
              instructed at one of the Inns of Court. Only barristers could argue issues of
              law before King’s Bench or Common Pleas. Nonetheless, this distinction
              was still developing during the early decades of colonial settlement.
              Legal practitioners abounded in the early colonies, both in number and
              variety. Some had English legal training. Before 1660, a significant number
              of attorneys practicing in the colonies had been trained as attorneys or
              barristers or had studied in the Inns of Court. Familiar with English law,
              such men played a crucial role in writing early colonial legal codes in
              Massachusetts, Connecticut, Rhode Island, and New York. English-trained
              practitioners also served as early critics of colonial divergences from English
              laws. A second group of legal practitioners was comprised of men who
              held political offices that involved the law: recorders and clerks, general
              attorneys, governors, and members of councils. In 1649, because people had
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              94 Mary Sarah Bilder
              asked magistrates (councilors) for advice in cases that later went to trial,
              Massachusetts prohibited such a practice. For similar reasons, after 1670,
              colonial acts prevented clerks, sheriffs, constables, deputies, and justices
              of the peace from practicing law. A third group of practitioners can be
              labeled simply as legally literate.Written literacy, combined with speaking
              skills and basic legal knowledge, permitted competent participation in the
              legal system despite the absence of formal training. Some legal literates
              acted as attorneys; others limited themselves to representing themselves,
              friends, associates, or dependents. Merchants comprised one category of
              legal literates because the skills needed for transatlantic business and law
              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
              22 Colony Laws of Virginia, ed. John D. Cushing (Wilmington, 1978), 2: 349.
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              English Settlement and Local Governance 97
              bound the colonies unless particularly named. The author suggested that
              “some Rule be established, to know what Laws the Plantations are to be
              subject to” and how far Parliamentary acts not mentioning the colonies did
              “affect them.” Until then, “we are left in the dark.”
              People had been in the dark about what was “law” in the colonies for
              a century. The existence of the question itself was proof of the ambiguity
              over the location of lawmaking authority. Non-English areas controlled
              by England certainly existed before settlement of the American colonies,
              but there was no uniform approach to when English laws governed. In
              Ireland, the English Crown essentially could write laws for Ireland. Under
              Poynings’ law (1495), legislation was to be approved by the English Crown
              and Privy Council before being passed by the Irish Parliament. InWales, an
              English statute in 1535 replacedWelsh laws with the laws of England and
              authorized the King and Council to reenact any necessary divergentWelsh
              customs. In the Channel Islands of Jersey and Guernsey, customary Norman
              law was followed, but the Privy Council had the right to hear appeals.
              The requirement in the patents and charters that laws be “as near as conveniently
              they may be, agreeable” or not repugnant to the laws of England
              created a foundation for debate. What this constitutional limit meant in
              practice was unclear. Very early arguments over the application of English
              law in the New England colonies approached the question as one of corporate
              law and discussed the authority under the patent. There was little else
              to discuss. For most of the seventeenth century, English case law on what law
              governed the colonies was largely unhelpful. Two cases discussing the rights
              of Scots over land in England seemed to bear on the issue, but provided little
              if any guidance. In Calvin’s Case (1608), Chief Justice Edward Coke established
              a set of categories (inherited versus conquered kingdoms), but did
              not explicitly discuss the question of the law in future American colonies.
              The awkward fit of these categories for the mainland colonies was apparent
              by 1624 when Coke and others considered the application of “conquest” to
              the New England patent.23 Decades later, in Craw v. Ramsey (1670), Chief
              Justice John Vaughan referred to the now existent “plantations”; however,
              the case involved the ability of a dominion to alter English law in England,
              not the application of English law in the colonies. Through the 1660s, the
              focus of the colonial law question was whether a colony’s passage of plausibly
              repugnant laws was sufficiently outside the colony’s charter to justify
              quo warranto proceedings. In the 1670s, the Crown’s effort to write colonial
              laws rendered the question almost moot.
              23 Proceedings and Debates of the British Parliaments respecting North America, ed. Leo Francis
              Stock (Washington, 1924), 1: 58–61.
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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
              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:
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              100 Mary Sarah Bilder
              In 1729, an opinion by the English Attorney General further complicated
              matters. Earlier comments had implied that a colony assembly had to enact
              post-settlement English law before it applied. The opinion concluded that
              a colony could introduce such an English statute by assembly act or receive
              it by “long uninterrupted usage or practice.” Colonial custom and practice,
              in particular, the degree to which English laws had been followed, became
              an additional debatable issue.
              These arguments about the application of the laws of England to the
              colonies, as well as the requirement that colonial lawmaking be not repugnant
              to the laws of England, depended on knowledge of the laws of England.
              Desirable English law books, therefore, were those that described the “laws
              of England.” The phrase was broad and ambiguous, but seemed to include
              at its core the Magna Carta, English statutes, and the principles and terms
              of English common law. In selecting law books, colonial legal attorneys
              favored texts that provided comprehensive overviews of English law and
              were designed for general practitioners. Treatises, particularly on such
              subjects as property and inheritance, offered comprehensible discussions.
              Statute collections such as Pulton’s Sundry Statutes or Keble’s Statutes at Large
              provided convenient access to English statutes. Guides for justices of the
              peace and jurors succinctly described the court system. Form books such as
              the Compleat Clerke provided necessary models for legal documents, and law
              dictionaries explained vocabulary. More popular than case reports themselves
              were abridgments of reports; a unique interpretation of an English
              case had little value. More unusual books related to legal issues of particular
              interest in the colonies: for example, charters, oaths, the liberties of
              Englishmen, and divergent English customs. Early colonial publications
              emphasized these same areas and included a book on indictments brought
              against the Duke of York; a treatise on Parliamentary laws and customs; a
              book including Magna Carta and the charter toWilliam Penn; and reprints
              of books on the right to juries, on inheritance, and guides for constables and
              sheriffs. In the early 1720s, Boston and Philadelphia printers both published
              English Liberties; or, the Free-born Subject’s Inheritance, a volume including the
              Magna Carta, fundamental laws, and comments relating to the “Constitution
              of our English Government.” As these books were bought, borrowed,
              and copied into commonplace books, a colonial vision of the laws of England
              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.
              A century and a half after the question was asked, “What manner of government
              is to be used,” the settlements had produced one answer. In the
              two corporation colonies, two proprietaries, and remaining royal colonies, a
              governor served as translator for Crown policies, an assembly held the lawmaking
              authority limited by the requirement of non-repugnancy to the
              laws of England, and the Crown through the Privy Council supervised the
              boundaries of colonial authority.
              What manner of government was this system? English settlement practices
              had created a government of dual authorities, legitimizing both Crown
              and colonial legislative authority. Acceptance of these dual authorities permitted
              colonial governance to successfully negotiate the geographic problem
              of the Atlantic. Although these dual authorities were in tension, they
              were not perceived as incoherent. By the mid-eighteenth century, however,
              as William Blackstone demonstrated, English political thought had
              become rhetorically intolerant of dual authorities. He wrote that “there is
              and must be” in all governments “a supreme, irresistible, absolute, uncontrolled
              authority, in which the jura summi imperii, or the rights of sovereignty,
              reside.” Blackstone placed this “sovereignty of the British Constitution” in
              Parliament – the King, the Lords, and the House of Commons.29
              For colonial lawyers, this construction threw into confusion two hundred
              years of settlement governance. As James Wilson, in Considerations on
              the Nature and the Extent of the Legislative Authority of the British Parliament
              (1774), wrote, “Dependence of the Mother Country” – of allegiance to the
              Crown – was understood “by the first planters of the Colonies, and also by
              the most eminent Lawyers, at that time, in England.” It was, however, a
              “dependence founded upon the principles of reason, of liberty, and of law”;
              not the “slavish and unaccountable” dependence and “unlimited authority”
              contended for by the Parliament. This understanding of dependence – dual
              authority created by supervised, constitutionally limited lawmaking – produced
              the Revolution and the commitment to federalism. Perhaps in this
              sense, institutional history helps us better understand an American manner
              of government.30
              29William Blackstone, Commentaries on the Laws of England (1765–1769; reprint,
              Chicago,1979), 1: 49, 51.
              30 James Wilson, Considerations on the Nature and the Extent of the Legislative Authority of the
              British Parliament (Philadelphia, 1774), 29, 31, 34.
              Cambridge Histories Online © Cambridge University Press, 2008
              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 “legal communications” to bundle together several
              distinguishable practices both to achieve breadth and to demonstrate their
              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
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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.
              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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              Legal Communications and Imperial Governance 107
              growing capacity to acquire and organize information too, though what
              they learned remained split up among numerous, ill-coordinated agencies.
              The Crown could demand that colonies send correspondence, reports,
              laws, and agents to London, but actually obtaining them was another matter.
              Royal officials complained that questionnaires and requests for public
              documents went unanswered, that laws and agents simply did not arrive.
              To encourage communications, the empire used incentives and coercion. If
              creating proactive clearinghouses and repositories for information was the
              Crown’s first strategy for mitigating distance, its second was to support those
              institutions with inducements and punishments. Colonial charters, Board
              of Trade correspondence, and governors’ instructions all contained threats.
              The Pennsylvania charter required that the proprietor keep an agent in
              London to answer complaints and pay damages, or face loss of the province.
              The Crown reprimanded governors who did not write frequently enough.
              It threatened to withhold salary from governors who did not transmit their
              colony’s laws or to remove them from office if they failed to return questionnaires
              about colonial law and government.
              Enticements to communicate about law were less obvious and require
              teasing out. They often arose indirectly as a byproduct of trans-Atlantic
              patronage and lobbying. Colonists who sent royal officials analyses of the
              shortcomings of customs inspections along with suggestions for reform
              might receive a position as an inspector. Those whose jobs depended on
              Crown patronage, such as royal governors, would keep leading English
              politicians informed about the state of colonial governance as a means of selfdefense
              in local factional intrigues. Board of Trade investigations of unjust
              colonial laws and official misconduct would lead complainants, defendants,
              and their allies to provide considerable quantities of otherwise elusive facts
              and opinions, along with supporting documents. Colonial interest groups
              working through London contacts would supply the government with information
              to secure influence over policymaking.
              The review of colonial statutes by the Board of Trade, as advisor to the
              Privy Council, provides a good example of the empire’s incentives to legal
              communications. The Board and Council gained information by directly
              questioning a wide range of sources about the origins and effects of colonial
              laws. This much is obvious. Other effects were more subtle. First,
              burdened with many responsibilities, the Board and Council might ignore
              colonial laws for months or years at a time or be tempted to examine them
              superficially. Knowing this, English interest groups and lobbyists favoring
              disallowance or approval of laws provided the Board and Council with
              their own analyses of statutes and colonial conditions. They hoped to influence
              the outcome of the process and set the terms of the review, but also,
              more fundamentally, to engage the attention of distracted administrators.
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              108 Richard J. Ross
              Second, the Board might hold off recommending confirmation or rejection
              of statutes and allow them to “lie by probationary.” This status, a form of
              administrative limbo, allowed for submission of critiques or defenses of colonial
              statutes as social and economic conditions changed. Should objections
              emerge, the Board could invite proponents to comment or ask the governor
              for his opinion. To establish priorities and provide context, the process for
              reviewing statutes not only welcomed commentary from interested parties
              but also depended on it, and even was structured to encourage it.
              Royal administrators not only tried to attract legal information to England
              through the formation of boards to serve as clearinghouses and through
              incentives and threats. They also placed in the colonies institutions and personnel
              loyal to the Crown. This was the empire’s third strategy. It projected
              metropolitan views of law into America by such means as establishing
              permanent vice-admiralty courts, dispatching resident customs inspectors,
              and appointing learned lawyers as the attorneys general and chief justices
              of royal colonies.
              The dissemination of English law books was a fourth method of legal communications
              in the empire. Crown administrators sometimes sent to the
              colonies compilations of English law specially assembled for a particular
              purpose. Three times in the late seventeenth century they forwarded guidebooks
              of trade regulations to customs officials in the colonies. After 1689,
              they provided all new governors with printed copies of the Navigation Acts
              and, on occasion, sent “trade instructions” prepared by the Commissioners
              of the Customs. Governors trying to unravel legal tangles in their colonies
              might receive descriptions of English law along with an admonition to do
              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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              Legal Communications and Imperial Governance 109
              conveyed more than their primary content – doctrines and procedures on a
              given subject (for example, the duties of a justice of the peace). They also
              alluded to English constitutional arrangements, methods of legal interpretation,
              strategies for mediating among coordinate authorities and for
              supervising subordinate ones, and theories of jurisprudence (including ideas
              about the relations of different bodies of law). There was, of course, no uniform
              metropolitan view of these matters. English law books offered a range
              of opinions that could later be brought to bear on contested political, legal,
              and constitutional questions. They offered colonists jurisprudential tools,
              precedents, and a framework of assumptions for disputing with each other
              and with the English government. Used both as forensic resources and
              practical guides, English law books made metropolitan legal understandings
              more prominent in the eighteenth-century colonies.
              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 “local” governments
              sometimes pursued conflicting interests, they worked together to
              resist spirited assertions of royal prerogative and to frustrate unwelcome
              imperial placemen and programs.
              The persistence of a significant measure of local control and diversity in
              the colonies’ legal systems in an era of imperial centralization calls for explanation.
              This study of Anglo-American legal communications suggests a way
              to approach the problem. The mechanisms of legal communication that
              evolved in the empire between the Restoration and the onset of the Revolution
              had a double nature. Although designed to foster imperial control – to
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              Legal Communications and Imperial Governance 111
              centralize – they also shielded a measure of local control and diversity in
              the colonies’ legal systems.
              This point is not as easy to see from within the colonies as from outside –
              from a comparative perspective. I use the Spanish empire in the Americas
              to suggest how incomplete and uneven were English efforts to communicate
              and enforce metropolitan law, even after post-Restoration centralizing
              reforms. The Spanish-American experience serves as a counterpoint that
              highlights how distinctive features of the Anglo-American system of legal
              communications unwittingly lent support to local control and diversity.
              My depictions of the Spanish and English empires resemble ideal types
              more than the messy, diverse, and evolving polities that they were, for I
              wish to compare the forms of imperial governance in Spanish and English
              America at their respective moments of maturity, rather than at the same
              chronological moment. My portrayal of the Spanish empire hence focuses on
              the period from c.1570–1710, after the solidification of Crown institutions
              but before the Bourbon monarchy appointed intendants in the Americas and
              slowly moved away from conciliar government at home. The full array of
              English imperial institutions and policies (including routine Privy Council
              appellate jurisdiction and review of colonial legislation, the agency system,
              permanent vice-admiralty courts, and an invigorated customs service) did
              not coalesce until the early eighteenth century. The mature English empire
              ran from c.1700 until 1763, when it underwent significant, fatal changes
              before the Revolution.
              Comparing mature forms of imperial governance slights colonists’ varying
              orientations to the empire and the hesitancies and contradictions of
              Crown policies. It also underplays historical development (more so in
              Spanish America than in the English empire, where the transition from
              seventeenth- to eighteenth-century governmental and communicative practices
              is a central concern of my analysis). Yet the method has signal advantages.
              Constructing ideal types of the legal communications systems of the
              English and Spanish empires facilitates comparison by drawing attention
              to their decisive features. An ideal type isolates and accentuates elements
              that were durable (rather than transitory), significant (rather than trivial),
              and widely shared (rather than local). In this sense, one can speak of the
              jury-rigged network of people and institutions that communicated law as
              a “system.” Though the term overstates the predictability and conscious
              design of legal communications in the English and Spanish empires, it is
              a useful shorthand for the cluster of practices and assumptions that made
              the transmission of law work differently between Castile and New Spain,
              on one hand, and between London and Massachusetts, on the other hand.
              I begin with a short description of Spain’s bureaucratic and legal apparatus
              in the Americas before turning to the main work of comparison.
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              112 Richard J. Ross
              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
              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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              Legal Communications and Imperial Governance 113
              and fiscal hierarchies received their appointments directly from the Crown
              and exercised substantial autonomous authority. Like the viceroys and governors,
              they enjoyed the right to correspond with and appeal to the Council
              in Spain. John Leddy Phelan observed a half-century ago that the Spanish
              Crown had created a “complex bureaucratic pyramid with multiple, partly
              independent and partly interdependent hierarchies.”
              The viceroys, governors, and audiencias oversaw smaller units of jurisdiction.
              Corregidores or acaldes mayores, appointed by the Crown or viceroy, governed
              towns and the surrounding countryside. These local officers exercised
              political, administrative, and to a lesser extent judicial authority within
              their districts. Within the towns, they worked with a municipal council
              (cabildo), which heard judicial cases, distributed land, supervised communally
              owned property and local infrastructure, and imposed taxes.
              The Crown was suspicious of its distant officials in the Americas. A
              steady stream of royal orders, decrees, and regulations sought to direct their
              activities or, at least, lessen the boundaries of their discretion. The Crown
              also designed residencia and visita procedures to scrutinize and control officeholders
              by hearing complaints of malfeasance. At the end of a magistrate’s
              term of office, an investigating judge collected and evaluated grievances
              against the departing official in a residencia process. All Crown appointees,
              from the viceroy down to the local corregidor and the municipal cabildo, went
              through a residencia. From time to time, in a visita procedure, a specially
              appointed judge heard evidence in secret in order to investigate the conduct
              of an official or tribunal. The visita served various purposes: it assessed
              the enforcement of particular laws, superintended troubled institutions or
              wayward officeholders, re-inspired obedience among officials identifying
              more with the local community than the Crown, and reported to the Council
              of the Indies on the administrative or political situation. The judges
              conducting the residencia or visita could advise, fine, suspend, or exile the
              officials under investigation, although the Council might alter or reverse
              sanctions recommended or imposed in the Americas. Through visitas and
              residencias; through judicial appeals, correspondence, and complaints; and
              through requests for adjustments in legislation and policy, the Council
              received considerable quantities of detailed, if self-serving, information.
              This sketch of the Spanish bureaucracy in the Americas can help highlight
              distinctive features of English imperial governance and its system of
              communications.We can see immediately that, in comparison with Spain,
              England’s review of colonial legislation, judicial decisions, and official conduct
              did not press down as deeply into the administrative structure and
              into society. In his descriptions of Tudor government, G. R. Elton looked
              for what he termed the “points of contact” between the Crown and the
              localities (e.g., the Privy Council, Parliament, the royal court). In this vein,
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              114 Richard J. Ross
              consider the points of contact between the imperial center and the colonial
              periphery. England maintained communications channels with officials
              and institutions at the top of the colonial legal and political hierarchies.
              The Privy Council heard appeals only from the highest court in the colony
              (which might be the governor and his council). It would not accept an
              appeal from intermediate colonial appellate courts, let alone from town,
              county, probate, or orphans’ tribunals or from justices of the peace. Nor
              would it second-guess jury verdicts.6 The Privy Council reviewed legislation
              passed by assemblies, but not town ordinances, or local customs, or the
              bylaws of corporations. England sent instructions to and required reports
              from governors. No similar demands went out to assembly representatives,
              town selectmen, or justices of the peace.
              To be sure, England assumed that by focusing communication and review
              at the highest points of the political and legal hierarchies, imperial priorities
              would influence colonial society indirectly. Assembly legislation might
              confirm or revise local ordinances and customs and, in so doing, bring them
              before the Privy Council. Judicial decisions in a colony’s highest court,
              which could be appealed to the Council, would take note of and shape the
              activities of lower tribunals. The governor would serve as a point of contact
              between the metropolis and lesser executive and judicial officials that he or
              the Crown appointed (which, in some colonies, included the critical local
              figure, the justice of the peace). The governor could pass on sections of his
              instructions and collect information to forward to London.7
              What stands out in this picture is how mediated and indirect communication
              about law was between London and colonial society. The Spanish
              empire, by contrast, encouraged direct communication between the Council
              and a wide variety of officeholders at the bottom as well as the top
              of its multiple bureaucratic hierarchies. By creating a variety of bureaucracies
              with ill-defined and overlapping jurisdictions, the Spanish Crown
              created conditions for rivalry. With rivalries came denunciations of opponents
              and appeals to Spain for redress and instructions. The Council of the
              Indies made sure that the viceroys and governors were not the primary conduit
              for communications – 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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              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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              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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              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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              Legal Communications and Imperial Governance 125
              discouraging the second (emergence of a colonial standard). Settlers knew
              less about the activities and assumptions of each other’s legal systems than
              they did about England’s. They constantly debated which provisions of
              England’s law they should adopt, reject, or meld with their own, but they
              did not need to adopt a position on each other’s legal practices – assuming
              that they could learn about more than published statutes, no easy matter.
              As a result, no colony served as the dominant clearinghouse of legal
              information for the others. None obtained a heightened power to block,
              redirect, or frame circulating legal knowledge. None provided the home
              for institutions that reviewed and interpreted law for the others or taught
              practitioners drawn from all over British North America. None emerged as
              the standard for the others to mimic or define themselves against. The patterns
              of communications in the empire, then, simultaneously encouraged
              anglicization and preserved a measure of diversity by muting the pressure
              on colonies to orient toward the legal cultures of their neighbors and
              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
              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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              Legal Communications and Imperial Governance 127
              Spread out in their vast American possessions and surrounded by large
              numbers of indigenous peoples, the Spanish did not want to drive their
              pool of laborers and potential converts beyond a frontier. Nor could they.
              There were Indian nations beyond the effective reach of Spanish power
              in the Americas, and in that sense, there was a frontier. But within the
              sprawling territory under Spanish control the colonists did not think that
              frontiers demarcated densely settled colonial areas from autonomous or
              semi-autonomous Indian areas, as in English North America. Spaniards
              and creoles instead expected native peoples to participate, if reluctantly, in
              the new colonial society.
              As a result, powerful social and political forces encouraged Indians
              to learn to manipulate the settlers’ legal system and helped introduce
              increasing knowledge of the colonists’ law into indigenous communities.
              The Spanish empire replaced the upper reaches of the old native political
              and administrative hierarchies, reorganized Indian towns, and used
              legal institutions to mediate the colonists’ demands for land, tribute, and
              labor. Although claiming to respect “good and just” indigenous customs,
              Spaniards reserved the right to decide which customs should be upheld and
              used this power to Hispanicize Indian customary law. In part to safeguard
              Indians out of a sense of paternalistic responsibility, and in part to prevent
              over-intensive exploitation by local settlers from interfering with more
              sustainable exploitation by provincial and metropolitan elites, the Crown
              set up institutions to protect the legal rights of native peoples. Viceroys
              in New Spain and in Peru created special tribunals, employing simplified
              procedures, to hear cases brought by Indians. They commissioned the fiscal
              [Crown attorney] of the audiencia or the protector de indios to provide representation
              in court to Indians and, in the process, teach principles of Spanish law.
              Within two generations after the Spanish conquests, native communities
              became adept and aggressive litigators over such matters as land ownership
              and boundaries, labor and tribute obligations, water and grazing rights, and
              succession to chieftanships. They challenged decisions of local officials by
              appealing to higher reaches of the bureaucracy. Although they resorted less
              frequently to the colonists’ law for resolving disputes within a community,
              they did engage in repeated litigation against Spanish settlers, officials,
              and other Indians groups. In the process, the Castilian laws, procedures,
              and terminology used in the colonists’ courts and bureaucracy seeped into
              native communities. The oversight of these communities by the alcaldes
              mayores and corregidores only increased the importance of Castilian law. By
              the beginning of the seventeenth century, native peoples were far along in
              fusing their traditional customs with elements of the colonists’ law.
              The situation in Spanish America highlights how seldom the English
              tried, for all their use of law to tilt political and economic interactions in
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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
              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
              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
              Peculiar features of charters introduced further variability into Privy
              Council review of legislation and appeals. Though the Pennsylvania charter
              required submission of legislation to the Privy Council, it gave the colony
              the unusually long period of five years in which to comply, which for a while
              enabled the legislature to pass limited-term ordinances and then repeal them
              before their disallowance. The charter also provided that a Pennsylvania
              statute would be valid unless the Council rejected it within six months
              of receipt (which made inertia and disorganization an ally of the colony).
              Massachusetts’s 1691 charter also promised confirmation of statutes unless
              the Privy Council disallowed them, in this case within three years rather
              than six months. Both charters limited the Council’s ability to let submitted
              ordinances “lie by probationary” without formal approval or rejection in
              order to invite comment from interested parties. The Massachusetts charter
              also allowed judicial appeals to the Council in personal actions (those not
              touching on real estate) worth more than £300. Through the middle of
              the eighteenth century, opponents of appeals read the charter strictly to
              permit appeals only in personal actions. In the late 1740s, Massachusetts
              Governor Shirley noted that colonial courts following this interpretation
              created a deliberately scanty written record in order to frustrate appeals in
              cases involving real estate.
              The relatively standardized governing institutions of the core areas of
              the Spanish empire highlight the multiplicity of types of colonies and
              charter provisions found in British North America. The English empire
              was required to work with agents of changing and uncertain allegiance, to
              build circuitous legislative review procedures for corporate and proprietary
              colonies, and to confront the inapplicability of some of its favored devices
              for communicating about law – gubernatorial instructions and allowing
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              statutes to “lie 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 “law of the Indies”
              particular to the colonies. (Of course, securing obedience to that law proved
              challenging.) The Council also decided which papal bulls and church documents
              could be promulgated in America. In the English empire, the Privy
              Council’s review of legislation and judicial decisions provided a means for
              announcing that colonists had misunderstood the dictates of metropolitan
              law, but only in a particular instance and after the fact. No English imperial
              institution played a role analogous to the Council of the Indies by deciding,
              in advance, which elements of metropolitan law applied to the colonies. No
              imperial institution resolved conflicts between legal provisions in tension or
              determined that particular laws should be ignored because they were irrelevant
              or harmful given American conditions. Settlers were left to argue over
              these matters themselves. This interpretive leeway supported local control
              and variability in the colonial legal systems.
              Reliance on amateur judges and administrators lacking legal education
              reinforced the colonies’ interpretive freedom in ways that further compromised
              metropolitan oversight. Even if well disposed toward the empire,
              colonial lay officials often could not decode all the implications of imperial
              legal documents written in a professional idiom. Lawyers trained by apprenticeship
              and a handful of Inns of Courts matriculants occupied only a small
              minority, of the main administrative and judicial offices in colonial America.
              Large landowners, merchants, planters, and scions of elite families provided
              the overwhelming majority of supreme, county, and probate court judges;
              governor’s councilors; city mayors and selectmen; and justices of the peace.
              By contrast, the Spanish empire used trained lawyers to staff major institutions
              of administration and judicature in America. Letrados (Spaniards
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              or creoles educated in civil and/or canon law in a university) made up the
              corps of audiencia judges and Crown attorneys (fiscales) and supplied most
              of the deputies to corregidores. They also served as legal advisors (asesores) to
              governors, municipalities, local courts, and state-sanctioned monopolies.
              Along with laymen, letrados acted as corregidores, alcaldes, and councilman in
              town cabildos. They performed residencias and visitas and clustered around
              the audiencia as advocates. Although laymen ran most of the ground-level
              administrative and judicial systems, letrados heard appeals, guided lower
              tribunals and officials, and made major policy decisions in the bureaucracy.
              The power and prevalence of letrados at all levels of Spain’s extensive imperial
              bureaucracy in the NewWorld only emphasize how small a role trained
              lawyers played in governing the British North American colonies.18
              What were the implications of the lack of trained lawyers for English
              efforts to project metropolitan legal understandings in the colonies? It is not
              clear that the multiplication of trained lawyers in American judicial and
              administrative institutions would have facilitated better imperial supervision
              of the colonial legal systems. Lawyers in the colonies sought less to
              help the empire than to help themselves.With few patronage appointments
              offered by London and the royal governors, lawyers turned to elective politics
              to get ahead. Most allied themselves with popular, anti-prerogative
              movements. Trained lawyers attended to the interests of the landowners,
              merchants, and planters who employed them, advancing or redirecting and
              undermining imperial policies as their clients’ needs arose.We should note
              that Spain’s American letrados could also prove less than dependable in the
              pursuit of imperial goals. Even those employed in the extensive imperial
              bureaucracy, reliant on the Crown for position and advancement, proved
              adept at deflecting or ignoring Castilian laws and royal orders in the service
              of personal or local interests.
              From the perspective of a history of legal communications, the central
              consequence of the English colonies’ overwhelming use of laymen in the government
              and judiciary may not have been a heightened propensity to disobey
              metropolitan directives so much as a reduced ability to see the background,
              context, and implications of the legal documents so critical to imperial
              regulation.We have seen that England transmitted expectations and goals
              to the colonies in a variety of forms, not least through legal documents. The
              concepts on which the constitutional relationship between England and the
              colonies was founded – 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
              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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              Legal Communications and Imperial Governance 135
              of metropolitan expectations. Nor, in any case, did the Council give any
              systematic attention to dissemination of its rulings. Orders were issued
              verbally or in sketchy written form supplemented and explained orally. Few
              were printed. Some circulated in manuscripts of uncertain distribution.
              Most spread by word of mouth in distorted and incomplete retellings.
              English government officials, let alone colonists, had trouble discovering
              what the Council had resolved and even greater trouble learning why.
              The haphazard dissemination of Council rulings provides an example of
              two larger phenomena: (1) reliance on scribal and oral dissemination of law
              and (2) the importance of written or verbal interpretations (or “framings”)
              that accompanied legal narratives and texts as they moved from place to
              place. Parliamentary and colonial statutes apart, only a tiny fraction of the
              laws and judicial and administrative decisions that governed public life
              were available in print. Most legal information circulated through handwritten
              manuscripts, whether traveling across the Atlantic (Privy Council
              rulings, governors’ instructions, customs service interpretations) or within a
              colony (governor, Privy Council, and court decisions; responses to petitions;
              directions for local officials). Unlike printed materials, manuscripts were
              neither standardized nor generally available to the public. When the holder
              of the manuscript circulated it, he had to decide whether to send it verbatim,
              edit it, or combine it with other texts. He could add material that
              explained, undermined, or reinterpreted the main document. At each link
              in the circulatory chain, brokers of legal information could also add verbal
              commentary that “framed” a manuscript (or printed document) with views
              of its meaning.
              A broker had to decide not only what to send but also to whom. He might
              routinely transmit documents to recipients selected because of their office
              (for instance, the secretary of a colonial assembly would routinely dispatch
              session laws to county clerks). Alternatively, he might distribute an edited
              and framed document only when politically or socially advantageous. He
              would consider the consequences of providing a given audience accounts
              of the Privy Council’s rulings, or portions of the governor’s instructions, or
              recent interpretations of the customs regulations. In turn, recipients would
              decide whether to circulate the document they received, to whom, and with
              what inclusions, exclusions, and changes.
              Political calculations and personal sympathies influenced not only the
              dissemination but also the storage of legal information and governmental
              records. Officeholders sometimes denied their political and social rivals
              access to records. Given the incomplete separation of governmental and
              personal roles, officials tended to mix state and private papers. On retirement,
              they might take home public documents, compromising the institutional
              memory available to their successors. The English administrator
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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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              Legal Communications and Imperial Governance 137
              position). Additionally, local clergy, military officers, university scholars,
              and nearby gentlemen expected to be apprised of legal developments. Their
              social status made them the natural rulers of society no less than government
              officials. Political effectiveness and even continuation in office thus
              depended on dexterity in brokering information.
              The centrality of scribal and verbal (as compared to print) media only
              reinforced the critical importance of social networks in shaping the patterns
              of legal transmission. The recipient of a manuscript either asked for it or
              held a place on the owner’s distribution list. Dissemination of law through
              personal discussions, and verbal framings of manuscripts and printed documents,
              occurred in face-to-face interactions. Colonial governments promulgated
              statutes and proclamations through announcements at court day and
              fairs; and one could purchase manuscript copies of records, such as charters,
              statutes, and judicial rulings. But aside from state commands and a limited
              class of public records, colonists could not obtain legal information as of
              right or by the payment of a fee. Most knowledge about law moved through
              the possessor’s networks according to the dictates of social obligation and
              political calculation.
              Social networks transmitted far more than the formal materials of Anglo-
              American law, such as Privy Council Orders, court decisions, and parsings
              of customs regulations. They also transmitted the mores and dispositions
              that make up a legal culture: for example, commitments to particular types
              of dispute resolution, presuppositions about the nature and sources of justice
              and good government, opinions about imperial superintendence, and
              favored styles of interpreting legal materials. Schoolmasters and college
              tutors taught those under their charge how natural law constrained the
              state’s positive law. Recently arrived Inns of Court barristers told their
              American business and political contacts what English statesmen thought
              the Glorious Revolution settlement meant for the colonies. Assembly representatives
              returning to their towns confided to their allies the compromises
              and limitations of newly passed legislation. Merchants recounted their
              London brokers’ opinions about the Privy Council’s agenda for colonial governance.
              Ministers advised their co-religionists about how to arrange their
              affairs to avoid ungodly secular courts.
              The importance of social networks to legal communications, broadly
              construed, helped preserve local control and diversity in the colonial legal
              systems. Metropolitan legal understandings could spread through colonial
              social networks only after they were introduced in some fashion. The
              English empire, compared to the Spanish, maintained fewer points of contact
              from which diffusion could begin. Consider, first, the connections created
              by the institutions of imperial governance. As we have seen, the Spanish
              empire developed a multiplicity of alternative communications links that
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              138 Richard J. Ross
              penetrated deep into the colonial governing structure and society. England
              maintained few points of contact outside the elites at the top of the legal
              and political hierarchies and beyond the colonial capitals and port cities. It
              lacked a robust inland bureaucracy.19
              Metropolitan legal understandings could spread to colonial social networks
              not only through imperial governing structures but also through
              other institutions, such as universities and churches. Spanish colonists
              rapidly built universities in the Americas. Six were founded in the first
              fifty years of their empire and twenty-three by the middle of the eighteenth
              century. Many of the Spanish American universities established chairs of
              law and oversaw the study of Roman canon ius commune and of natural law
              (also offered in the arts curriculum). During the sixteenth and seventeenth
              centuries, the universities did not formally teach royal law. Their program
              of ius commune and natural law served metropolitan purposes obliquely by
              bringing a measure of unity to the legal culture of Spanish America and by
              providing a counterweight to local diversity in lawmaking. By the early to
              middle eighteenth century, universities began teaching royal law directly.
              They added chairs in that subject under the encouragement of the Council
              of the Indies. Knowledge of Roman, canon, natural, and royal law spread
              beyond the universities’ students to the lettered segment of society, particularly
              those linked to the government bureaucracy and judiciary. By contrast,
              none of the handful of colleges in the English colonies offered a directed
              course of readings in law. Nor did they maintain chairs of law. Settlers
              who desired to learn law in an educational institution (rather than through
              apprenticeship) traveled to the Inns of Court in London. Compared to the
              number of Spanish America colonists exposed to Roman, canon, natural,
              and royal law in New World universities or through diffusion from those
              educational centers, they were few in number.
              Churches and clergy could also introduce metropolitan legal understandings
              into colonial social networks. Unlike the pluralistic and frequently
              contrarian British North American denominations, the Spanish American
              church devoted itself to upholding the Crown’s political and legal authority.
              Special papal dispensations gave the Spanish king more extensive supervisory
              powers over the church in America than any monarch enjoyed over the
              church in his European territories. Under the system of Patronato Real, the
              Crown nominated archbishops, bishops, and abbots directly and other clergy
              indirectly and controlled ecclesiastical revenues and governance. Catholic
              clergy dependent on the Crown for their positions and funding taught principles
              of law and constitutionalism through sermons, private instruction,
              19 I owe the phrase “inland bureaucracy” to a conversation with Prof. Charlotte Crane.
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              Legal Communications and Imperial Governance 139
              and example. They ran schools and the universities. Clerics served as advisors
              and advocates for Indians in secular legal and political affairs. Ecclesiastical
              courts also protected “wretched persons” – 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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              Legal Communications and Imperial Governance 141
              brokers of legal information did not. Assembly representatives, justices of
              the peace and sheriffs, vestries, merchants, clergy, lawyers of various degrees
              of training and professionalism, gentlemen who dominated their counties
              – these brokers, motivated by their interests and ideological commitments,
              screened or transformed metropolitan legal understandings while circulating
              them through social networks. If local brokers and networks were disinclined
              to cooperate, the English empire encountered real practical difficulty
              in projecting imperial versions of law. More often than not, metropolitan
              legal understandings reached colonists in fractured and competing forms.
              They did not enjoy the widespread presence and the perceived solidity
              and certainty that legitimates unfamiliar or unpalatable law. The empire’s
              dependence on self-interested and unreliable colonial brokers and social
              networks helped preserve a measure of local control and diversity in the
              colonial legal systems.
              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
              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.
              Cambridge Histories Online © Cambridge University Press, 2008
              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.
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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
              “lawless” Indians, “heathen” Africans, or “Popish” Roman Catholic colonial
              rivals. The law provided different models for national recovery, and the two
              colonization ventures that began England’s overseas empire – 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
              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.
              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 “laws of nature & of
              nature’s god.”2
              Jefferson’s invocation of the first settlers as “farmers, not lawyers,” artlessly
              natural simplifiers who improvised on a common fund of a libertyloving
              tradition, served the immediate needs of political mobilization and
              emphasized a bright line between legal cultures separated by an ocean. But
              it intentionally neglected the English antecedents of a continuing American
              legal tradition of instrumentally crafted regional variation. Legal regionalism
              among the colonies had existed as a reality long before it became
              a consciously articulated ideal when Americans reexamined their colonial
              past in search of a workable foundation for a new legal order in the 1780s.
              The politics of unification forced James Madison as “Publius” to acknowledge
              the “different laws and circumstances” within his “extended republic
              of the United States” and led his co-author John Jay to address the danger
              that “three or four confederacies” might form among the different regions.
              Turning regionalism into an asset, however, “Publius” argued that regionalism
              within a federal union was a virtue that would prevent monolithic
              national consolidation.3 Not only did this new concept prove more useful
              for the political needs of the new republic but it was also, in fact, far more
              accurate as history than Jefferson’s artful Revolutionary polemic suggested.
              Americans discovered their tradition of legal regionalism as soon as
              the question of imperial constitutional structure was replaced by the new
              1 Thomas Jefferson, “Draft of Instructions to the Virginia Delegates in the Continental
              Congress” [July 1774], published as “A Summary View of the Rights of British America,”
              The Papers of Thomas Jefferson, ed. Julian P. Boyd, et al. (Princeton, 1950), I: 133. When
              printed as “A Summary View,” “farmers” had been changed to “laborers.”
              2 This is the form used in “Jefferson’s ‘original Rough draught’ of the Declaration of
              Independence”; Ibid., 423.
              3 Madison, The Federalist, No. 51 (“extended republic”), 53 (“different laws”), in The
              Federalist, ed. Jacob E. Cooke (Wesleyan, CT, 1961), 353, 363; Jay discussed regional
              confederacies at Ibid., No. 5, 25.
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              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 “law” meant state law, especially
              in the area of private law. When Jesse Root of Connecticut wrote his
              introduction to the first law reports published in the United States, it went
              without saying that “a system of jurisprudence congenial to the spirit and
              principles of our own government” meant that of Connecticut. Revolutionary
              republicanism had left Americans suspicious of political motivations,
              especially those that threatened now to consolidate their communities and
              submerge their rights and identities within a national (and formerly, imperial)
              monolith. As Americans of different regions resisted the superimposing
              of a new national identity that threatened to efface local legal and political
              structures, they took refuge in a constitutional counter-narrative that
              sharply accentuated regional diversity.
              Maintaining the union, paradoxically, would require the formal recognition
              of regional and local variation. “Nationalism in America,” the historian
              Peter S. Onuf explains, “developed in tandem with opposition to centralized
              state power; sectionalism was its logical corollary.” Only after independence
              had been secured did the difficulties of political union confront the aggregated
              states with the reality of the variations among their systems of law.
              Only then did the fact of their regional dissonance seize their attention and
              4 Jefferson to James Monroe, October 5, 1781, Papers, VI: 127.
              5 Jefferson to Edmund Randolph, August 18, 1799, in The Life and Selected Writings of
              Thomas Jefferson, ed. Adrienne Koch andWilliam Peden ([1944] New York, 1993), 504–
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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.
              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
              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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              Regionalism in Early American Law 151
              different ways in order to choose among different, even competing, forums.
              The law courts derived their revenues from fees collected from litigants, and
              two of England’s high courts of law at Westminster – King’s Bench and
              Common Pleas – vied with one another for business. If it is too much to label
              England’s legal system a free market in law, it remains true that courts competed
              with one another and provided options to forum-shopping litigants.
              Although we speak of a “common law,” the term misleads if it implies a
              uniform national law. In the first half of the seventeenth century Sir Edward
              Coke could list more than 100 different courts in the realm, including
              merchants’ courts, ecclesiastical courts, and manorial courts, as well as courts
              that served specific locations, such as the Courts of the Cinque Ports and the
              Court of the County Palatine of Durham. Writing on the eve of American
              independence, Sir William Blackstone praised the “prodigious variety of
              courts” created in England. “The policy of our ancient constitution, as
              regulated and established by the great Alfred,” he wrote, “was to bring
              justice home to every man’s door, by constituting as many courts as there
              are manors and townships in the kingdom. . . . ”6
              The common law thus acknowledged local variation, and the reach of
              the central common law courts fromWestminster varied according to local
              forces and practices. The common law, moreover, was not the only law
              available and had not fully supplanted the ancient Anglo-Saxon courts of the
              shire and the hundred. It coexisted, too, with non-common law courts such
              as civil (Roman) law courts that offered specialized justice for particular
              issues ranging from admiralty to marriage and the probate of personal
              property. Henry VIII, who viewed the common law courts and their lawyers
              with some suspicion, had sought to check their accumulating authority by
              encouraging the rival system of Roman civil law used in these numerous
              specialty courts. Henry also made great use of his Court of Star Chamber,
              where his Privy Councilors met and addressed matters affecting the security
              of the state or involving powerful magnates beyond the grasp of ordinary
              common law courts. Though its substantive law was that of the common law
              and common lawyers participated in its proceedings, its procedures were not
              bound by it. Such a court – known as a “conciliar” court because composed
              of a council – provided enormous advantages in furthering the interest of the
              state: the attorney-general brought prosecutions by information (not grand
              jury presentment), and no trial jury took part. Punishments also ignored
              the limits of the common law, and the court might order the severing of
              ears or the slitting of noses.
              6 Sir Edward Coke, The Fourth Part of the Institutes of the Laws of England, Concerning the
              Jurisdiction of Courts ([1641] London, 1797). SirWilliam Blackstone, Commentaries on the
              Laws of England, ([1765–69], reprint, Chicago, 1979), 3: 24, 30.
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              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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              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
              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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              Regionalism in Early American Law 155
              power) from his commission. The legitimacy of his office rested as much on
              his standing in the community and in his recognition of norms and standards
              accepted by those on whom the law operated and whose acquiescence in the
              system was vital. Blackstone conceded that the legitimacy of the common
              law “rests entirely upon general usage and custom.” Though the local justice
              himself was “the depositary of the laws,” his stature rested on more than his
              study of the law, for “the only method of proving, that this or that maxim
              is a rule of the common law, is by shewing that it hath been always the
              custom to observe it.” His knowledge “of the existence of such a custom as
              shall form a part of the common law” legitimized his decisions, and it was
              precisely because of the force of custom that precedent formed the base of
              the common law. Justices of the peace embodied the “local knowledge” that
              only a resident and an amateur guided by such sensitivities would honor.
              Blackstone was using this legacy to defend the authority of the common law
              and its judges against challenges of arbitrary discretion, but the process by
              which he described the origin of customs for England was, ironically, easily
              applicable to American departures in a new environment: “what before was
              uncertain, and perhaps indifferent, is now become a permanent rule. . . . ”8 –
              a maxim that would, much to Blackstone’s indignation, legitimize variant
              forms of custom-based provincial law in America. As Keith Wrightson
              reminds us, the “wide variation of practice and jurisdiction” in local courts
              contradicts any conclusions about uniformity that we might draw from the
              prescriptive literature of legal treatises and manuals. The legitimacy and
              utility of “local knowledge” in resolving disputes, defining the limits of
              acceptable behavior, and protecting property, therefore, caution us not to
              impose any grand theory of legal thought and behavior in early modern
              England or early America. Rather, the law they applied and the practices
              they followed thus bore a deep local imprint.
              The imprint of local mores received still greater emphasis through the
              broad participation of ordinary individuals in the durable ancient institution
              of juries and jury-like bodies. The first settlers were not legal illiterates:
              as “farmers” they possessed considerable knowledge of the “practick part
              of the law” that defined meum et tuum – 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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              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.
              The historical moment of English colonization in an age of legal response
              to crisis mixed these contingencies of context and timing with the determinisms
              of regionally different colonial impulses and circumstances to
              produce enduring regional patterns of consciousness and behavior. The historic
              legal template of localism, creative institution building, and reformist
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              Regionalism in Early American Law 157
              streamlining provided a basis for continued legal change and was reinforced
              by the process of colonization, in which, according to R. Cole Harris, settlers
              “experienced strong selective pressures that emphasized some tendencies
              and atrophied others.” Following those tendencies in different, regionally
              specific directions as it adapted to the particular enterprises of different
              colonizing projects, colonial law showed itself to be, as a bewildered British
              official commented in 1708, “a strange sort of Proteus capable of putting
              on all shapes and figures as occasion requires.”9
              English visitors also derided what they perceived to be the rustic crudeness
              of colonial law, but they made such observations about all colonial
              institutions. In reality, the dire necessities of survival had compelled settlers
              to ignore many formalities of the law no less than those of other social
              arrangements. It would have been impossible, in any case, to duplicate the
              technicalities and distinctions that persisted in England by law and custom
              without a fully trained legal or administrative cadre even if anyone
              had attempted it. But it would be a mistake to oversimplify this process
              as artless or inexpert and explain it as the result of frontier degeneracy or
              unfamiliarity with proper procedures – 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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              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
              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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              Regionalism in Early American Law 159
              land transactions but also record the earmarks of their cattle or the terms
              of a bill of obligation.
              The justices of the peace who controlled the colonial county courts were,
              like those who conducted quarter sessions in England, the men of affairs
              of the county. Lacking the social differentiation and long-established institutions
              that had made English local justice a patchwork of competing and
              parallel jurisdictions, the colonists had little choice but to concentrate control
              in institutions and in persons who could command respect. But as the
              products of the colonization process that had created them, the county elites
              of Virginia and New England embodied the differences behind the impulses
              and circumstances of the two colonies. In Virginia this elite emerged from
              the competitive race to control the tobacco boom. They were “winners in
              the servant sweepstakes” that ousted those chosen by the Company and successfully
              exploited those whose labor produced the wealth that supported
              the new planter aristocracy, and they guided legal affairs toward protecting
              their regime of acquisitive individualism. At Massachusetts Bay, the
              ruling elite was an imported phenomenon: the earliest colonization of the
              “Great Migration” resembled more a series of group migrations than a trek
              of individuals, and the distinctive coherence of the Puritan utopian vision
              preserved an acknowledgment of authority in the “godly.” That vision also
              carried with it a distrust of human authority, following the Calvinist fear
              of “what desperate deceit and wickednesse there is in the hearts of men.”
              For that reason, “well ordered liberty” meant “well-balanced authority in
              the magistrates” and further “that all power that is on earth be limited,
              Church-power or other.” Before the founding generation died, they had
              devised a “Body of Libertyes” and then a frame of “Lawes and Libertyes”
              that specified limits on government as well as on personal behavior. They
              provided clear procedures to be followed in court, for example, and reduced
              England’s list of more than 100 capital offenses to 15.
              The pattern of rule by a hierarchy of status and wealth continued in both
              colonies, with power concentrated in a manner “which all men respect,”
              remarked John Adams about Massachusetts, “and all men deride.” Adams’s
              comment reflected another colonial reality, one that reproduced an English
              reality in local courtrooms of both Massachusetts and Virginia: namely,
              that the practical needs of governance meant that local oligarchs had to
              share control with lesser men of the middling sort. If the county elites
              did not govern unchallenged, neither did they govern unassisted. In that
              respect activity at Virginia’s county courthouses differed little from those in
              Massachusetts, where, as Adams noted of his own experience, “the practice
              of Law was grasped into the hands of Deputy Sheriffs, Pettyfoggers, and
              Even Constables, who filled all the Writts upon Bonds, promissory notes
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              160 David Thomas Konig
              and accounts, received the Fees established for Lawyers and stirred up many
              unnecessary Suits.”10
              Wide participation in legal institutions was exceeded by an even wider
              participation in the market for land and other property in which emerging
              legal practices expressed local goals. The broad distribution of freehold
              meant that a much larger segment of the population enjoyed the advantages
              of property ownership. Colonists were thus able to buy, sell, mortgage, or
              rent their land much more freely than any generation of Englishmen could
              remember, but with that liberation of property came a greater need to secure
              it. Participation in a market economy brought with its advantages the risks
              not only of loss but also of fraud or otherwise unrecoverable obligations. John
              Locke was surely correct when he wrote that “in the beginning all theWorld
              was America” in its abundance of property unprotected by government,
              but once America became an English property-holding society it became
              necessary to provide for “the preservation of their property,” and it was through
              the creative and synergistic reconstituting of English legal arrangements
              that they accomplished this objective. Laws that seem the sudden product
              of immediate action, wrote Sir Matthew Hale, actually reflect a process he
              observed in his study of English law; namely, that of “time, which as it
              discovers day after day Inconveniences, so it doth successively apply new
              Remedies; and indeed it is a kind of aggregation of the discoveries, Results,
              and applications of ages and events.”11
              Ordinary but extensive dealings in property over time thus led colonists
              in Virginia and Massachusetts to reach back to procedures from their experiences
              at church or manor courts for the legal mechanisms needed in a new
              land of property, presenting another example of Julius Goebel’s observation
              that many colonial legal practices drew from “the backwaters of the
              mainstream of the common law.” That these practices usually began as the
              responses of erstwhile tenants transformed into cautious smallholders must
              not obscure the legal knowledge behind them nor the way that intelligent
              assessment and calculation of possibility move legal change. The new
              bourgeoisie of landed settlers knew enough of the law to know that oral
              agreements or implied promises might not suffice in court to protect their
              interests. It was for this reason that a Virginia county court in 1682 prudently
              advised two men to convert their “verball agrement” into a written
              lease. Servants promised their freedom knew enough law, too, to insist that
              10 The Diary and Autobiography of John Adams, ed. Lyman H. Butterfield (Cambridge, MA,
              1962), III: 274.
              11 Sir Matthew Hale, Of the Alteration Amendment or Reformation of the Lawes of England
              [1665], cited by Howard Nenner, By Colour of Law. Legal Change and Constitutional
              Politics in England, 1660–1689 (Chicago, 1977), 15.
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              Regionalism in Early American Law 161
              vows to free them were stronger if written down and specified the quid pro
              quo of consideration that made the contract valid. The nature of the agricultural
              economy and the aspirations of common people accelerated a turn to
              law and demanded effective legal instruments tailored to their needs. Simpler
              also meant better if it suited the basic needs of the face-to-face societies
              of the first settlements. If a lack of specie required Virginians to use tobacco
              as a medium of exchange, they also easily adapted to transatlantic bills of
              exchange. If keeping accounts in a ledger book sufficed for village life in
              early Connecticut, later generations of colonists had little trouble using
              more formal written obligations, which replaced the simpler procedures
              when commercial activity created debts of a more distant nature.
              The disruptions of the Civil War and Interregnum gave Virginia and
              Massachusetts the benefit of additional time and relative isolation to continue
              framing new and regionally specific templates for the development of
              legal institutions. The problems they faced and the solutions they devised
              in this first wave of colonization set patterns that would serve well in the
              colonies that joined them to create two great regional aggregates in the
              Chesapeake and New England. The vastly differing patterns in employing
              this autonomy over time produced profound variations between these two
              earliest regional legal clusters – 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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              Regionalism in Early American Law 163
              increased to 10 percent. Dutch law conferred full assignability on debts,
              including specialties, to facilitate exchange. Aspects of the Roman civil
              law that fostered economic growth allowed women to take part in trade on
              their own, without their husband’s approval. Keeping their maiden names,
              jointly executing documents with their husbands, or signing obligations
              that bound their husbands (the civil law had no doctrine of coverture), they
              became partners who shared profit and loss in family business. Settlers there
              “love nothing so much as their freedom,” noted a German visitor, and colony
              officials who tried to impose religious conformity met spirited resistance,
              as did attempts to control local courts, which retained their Dutch magistrates
              even after English conquest. The conquest of New York marked a
              new moment in English colonization – 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.
              In 1696 the Crown and Parliament cobbled together a system of imperial
              administration that they hoped would produce, among other positive
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              Regionalism in Early American Law 165
              results, a more efficient and uniform administration of law in the colonies.
              They failed, largely because of bureaucratic inefficiency, special interest lobbying
              by colonists and British traders, and resistance from colonial courts
              and legislatures. These locally entrenched legal departures defied any and all
              imperial attempts at uniformity, and in 1730 an exasperated imperial official
              could complain “that throughout the whole continent of North America,
              there are not two colonies, where the courts of justice or the methods of
              proceedings are alike. . . . ”14
              Parliament tried again, of course, in the 1760s. It was, appropriately,
              a conservative member of Parliament and agent for New York, that most
              fractious of North American colonies, who grasped more fully the course
              of colonial legal development when he urged abandonment of the plan in
              1775. Representing New York’s interests, Edmund Burke came to realize
              the necessity of recognizing the diversity of interests in the empire and the
              need to bring them together – 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
              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
              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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              Regionalism in Early American Law 167
              than newer ones. As a result, some enactments had “no effect or operation
              in Virginia” but did, say, in Georgia, the colony established most recently.
              “Those who are acquainted with the prodigious changes made in the laws
              of England, during the period above-mentioned, will at once discover that
              there could be no common rule of law between the two colonies, unless
              that rule could be deduced, without alteration, from a period antecedent to
              the charter of Virginia. The same observation will hold as to all the other
              colonies, neither of which were bound by any English law that was not in
              being at the time of its own establishment.”17
              Tucker added another – “and by far the most copious” – element fueling
              legal regionalism: “the power which the legislatures of several colonies
              were perpetually engaged in exercising, viz. that of making laws adapted
              to the views, principles, situation, and circumstances of their respective
              inhabitants and countries.” Except for the requirement that colonial law
              be not repugnant to English law, assemblies had been free to pass any laws
              “deemed applicable to their respective situations and circumstances.” Not
              surprisingly, “the application of this rule in the several colonies will be found
              to have been as various as their respective soils, climates, and productions.”
              Any effort to understand American legal development, therefore, had to
              begin by acknowledging the historical force of regional variation and “must
              again abandon all hope of satisfaction from any general theory, and resort to
              their several charters, provincial establishments, legislative codes, and civil
              histories, for information.”18
              Tucker had a powerful and compelling reason to include his argument
              for regional variation with his edition of Blackstone – his abiding political
              animus against the Federalists. Like Jefferson, he feared what he perceived as
              a stealth campaign to undermine the true meaning of the federal union and
              replace it with a consolidated national government. The arch villain in this
              plot, he believed, was Massachusetts, and he devoted his greatest energies in
              emphasizing regional autonomy to demonstrating how incompatible were
              the legal systems of Massachusetts and Virginia, ignoring the colonies separating
              them. Following Jefferson’s lead in emphasizing regional variation
              in the new nation, Tucker attributed this polarization to vastly differing
              “local circumstances,” as well as to the “differing motives and intentions of
              the colonists, in their respective migrations.” Unashamed at the acquisitive
              commercial impulse behind the Virginia Company, Tucker admitted that
              Virginia’s settlers had been “allured by the hopes or prospects of immense
              riches, or a comfortable subsistence, at least.” As a result, they had little
              reason to reject English law and acted to “conform as near as possible both
              in doctrine and in practice to all the institutions of the mother country.”
              17 Ibid., 321–22, 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 “learned counsel” among the colonists but also to legal
              opportunism flowing from different agendas. The Puritans used the East
              Greenwich clause to import the local Kentish principle of partible inheritance
              through gavelkind, as well as an immunity to forfeiture on conviction
              of treason or felony – 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
              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
              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 “law” of
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              Regionalism in Early American Law 171
              slavery there. The brutal regime of the first Virginia planters could draw
              on a tradition of martial discipline to compel work and to punish with
              discretion. Africans were bought and sold, treated more harshly than white
              indentured servants, and held to longer terms of servitude. Explicit legal
              distinctions between blacks and whites began to be made before the Civil
              War, and by the Restoration slavery existed in law inVirginia and Maryland.
              Within a generation, slavery would become a central feature of life in the
              new Carolina colony to their south, where ´emigr´e planters from the West
              Indies brought with them experiences and legal precedents of the islands,
              which they amalgamated with what they found on the mainland. “Colonial
              lawyers were analytically opportunistic,” writes Jonathan Bush, in creating
              slave laws, adopting rules that had governed villeins, apprentices, and
              indentured servants, as well as property under the common law. While
              the common law for whites moved inexorably toward more freedom, the
              common law principle of legal thinking in favorem libertatis was reversed
              for blacks. Continental civil law also provided legitimacy for change where
              needed, making descent of status follow that of the mother, thus providing
              legal support to the social reality of white owners impregnating their
              female slaves. Civil law principles of slavery thus survived not only in those
              colonies settled by Continental kingdoms in New France and New Spain
              but also in that of New Netherland, where a “half-free” status obtained,
              in which slaves owned by the Dutch West India Company owed yearly
              dues and a specified amount of labor to the Company but worked for other
              masters and were entitled to keep part of their earnings, a relic of civil law
              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
              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.
              Cambridge Histories Online © Cambridge University Press, 2008
              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
              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.
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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.
              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
              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.
              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.
              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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              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
              The authorities aimed to ensure the greatest solemnity and dignity to the
              proceedings. On hanging day, after all, the state was taking up the sword and
              destroying the gift of life. In their justifications, ministers recognized the
              extremity of the law’s actions. Nothing less than the good of all sanctioned
              the resort to force. Describing the purposes of an execution of a murderer
              in 1754, Charles Chauncy insisted: “And this is the Design of this Day’s
              Execution. It is intended for the common Good, by exhibiting an Example of
              public Vengeance: Such an one as is fitted to curb the Lusts of Men, and prevent
              their breaking forth in murderous Attempts upon the Life of their Neighbour.
              We should view it in his Light and be deterred from that Crime which will
              expose us to be cut off by the Hand of civil Justice.”2 None, ministers and
              2 Charles Chauncy, The Horrid Nature, and Enormous Guilt of Murder. A Sermon Preached at
              the Thursday Lecture in Boston, November 19th, 1754, The Day of the Execution of William
              Wieer, for the Murder of William Chism. (Boston, 1754), 22.
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              Penality and the Colonial Project 187
              colonial officials insisted, should mistake the absolutely necessary nature of
              the state’s violence.
              Throughout the colonial period, the legitimacy of these hanging days
              went largely unchallenged. Because people of different classes and races,
              men, and women attended, leading ministers (like Chauncy or, earlier,
              Increase and Cotton Mather) eagerly participated in the ceremony, seeing
              it – 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:
              4 Samuel Sewall, The Diary of Samuel Sewall, 1674–1708, ed. M. Halsey Thomas (New
              York, 1973), 1: 509.
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              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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              Penality and the Colonial Project 189
              metropolitan countries, its very diffuseness signified that the law was remaking
              the new world in its own interest. The distinction between everyday
              and official spaces, between the secular and the sacred was blurred thereby.
              The criminal law and its violence could appear in unexpected places.
              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
              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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              Penality and the Colonial Project 193
              the early emphasis on magisterial piety faded away. But in whatever variation,
              the Puritan emphasis on intrusive surveillance and magisterial inquisition
              was strong – as was the necessity for that surveillance and inquisition
              to be practiced.
              Through their intense emphasis on the practice of conscience, the
              churches helped construct a culture of communal inquiry into guilt and
              accustomed early New Englanders to a culture of confession. As a result,
              New England authorities expected defendants to admit guilt without argument.
              In seventeenth-century New Haven, for example, the accused were
              subject to a series of intense interrogations by the colony’s leading figures
              both before and during trial. The search for confession was quite successful.
              In the twenty years of the New Haven colony, over half of all defendants
              confessed to their crimes; indeed in the period from 1645–58 more than
              80 percent of defendants confessed. New Haven was extreme in its success,
              but its emphasis on confession was not unique.
              TheNewEngland colonies tailored their codes in accord with their understanding
              of Divine ordinance. In early Massachusetts, authorities transposed
              biblical penalties into the legal system. Adultery, worshiping false gods,
              and blasphemy among other offenses were capital crimes in the early years
              of the colony. But at the same time, the colony broke from the English tendency
              to impose capital punishment for crimes against property (initially
              no crimes against property were capital). In its Body of Liberties (1641),
              the colony limited itself to twelve capital offenses, each with appropriate
              biblical justification. As the seventeenth century progressed, however, the
              colony’s code moved more in alignment with the English; by the latter part
              of the century the list had grown to at least twenty-five capital offenses. Not
              only did they include serious crimes against the person (rape, murder) but
              also an expanding list of crimes against property. Nor were capital sanctions
              the only tools at the hands of the state. The New England colonies could,
              and did, employ a wide range of other penalties, including whipping, pillorying,
              fining, branding, marking, boring the tongue, and banishment.
              The statutory history of those colonies that split off from Massachusetts
              Bay largely repeated the history of the Puritan Commonwealth.
              If New Englanders insisted that crime and sin be dealt with publicly,
              that did not mean they insisted they be dealt with by juries. Throughout
              much of the seventeenth century, jury trials in non-capital cases were quite
              few in number. In New Haven, juries were effectively abolished; in Massachusetts
              and Connecticut their role was severely circumscribed. Only in
              Rhode Island did trial by jury in lesser criminal cases take a firm hold.
              Most criminal cases (short of capital crimes) took place either summarily or
              before magistrates in court. Guilt needed to be established in public, but
              that did not mean that it had to be established by the public. Although
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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
              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.
              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
              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
              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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              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
              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
              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.
              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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              Penality and the Colonial Project 205
              cauldron of revolutionary conflict, the newly independent states solidified
              colonial practices in the South while departing in new directions in the
              North. But even then Americans did not escape the legacy of their British
              and imperial roots, for their search for republican penalties led them into
              alliances with English strategists and theorists of punishment. Like their
              early forbears, revolutionary-era Americans drew on disparate British penal
              traditions. The bonds of civility persisted beyond the rupture of revolution;
              the colonial relationship would not be left behind.
              Nonetheless, the era of the American Revolution and Early Republic
              did witness important transformations in the structures and practices of
              criminal punishments and moral regulation. Most obviously, the British
              Empire no longer determined the parameters of criminal justice in the
              newly independent United States. Although the federal government did
              construct its own criminal code its influence was negligible outside the
              maritime arena. As full responsibility for crime and punishment fell to
              the states the regional diversities that were implicit in the colonial period
              became more explicit. What had previously been a case of different practices
              within a predominantly uniform system of punishment now became
              a matter of overt policy. The Northern states increasingly centered their
              penal systems on reformative incarceration while limiting the deployment
              of publicly inflicted capital and corporal sanctions. In the South, although
              penitentiaries emerged in all states outside the Carolinas they remained
              marginal to the central task of the criminal justice system, which remained
              to give support to the system of slavery. In the South, the dual system of
              justice inherited from the colonial period became even more entrenched
              and racially coded.
              The criminal law had been at the center of the agitation that led toward
              independence. From the early efforts to expand vice-admiralty jurisdiction
              and limit the power of local juries in maritime cases, through the trials of the
              Boston Massacre, to the removal of accused British officials from the control
              of all local jurisdictions, the question of the power to punish and to define
              criminality haunted the revolutionary process. Popular justice, both real and
              symbolic, made manifest colonial consciousness while revealing the coercion
              that was intrinsic to the rebellion. During the war for independence, the
              power to punish and to define criminality lay at the heart of American
              claims to sovereignty – signified in the American army’s execution of John
              Andr´e for espionage against a nation that he did not recognize.
              Consequently, the Northern states began to restructure their systems of
              punishment with remarkable rapidity after independence. Removed from
              the structures of the empire, Northern writers and legislators demonstrated
              their attachment to the doctrines of penal reform that had been circulating
              through genteel Britain and Europe since the middle of the eighteenth
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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.
              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.
              Cambridge Histories Online © Cambridge University Press, 2008
              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),
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              212 Christopher Tomlins
              periods, natural increase quickly outpaced immigration in accounting for
              population growth. Incessant migration and rapid growth underlie the
              third continuity: relentless expansion. Migration and natural increase transformed
              the first little clusters of foreign strangers into teeming creole2 populations,
              whose expansive mobility and constant craving for productive land
              pressed unremittingly on indigenous inhabitants decimated by disease and
              warfare. The British were “like Piggons” according to the Shawnee people of
              the mid-eighteenth century Ohio Valley. Suffer but a pair to reside, “thayd
              Draw to them whole Troopes” and take all the land.
              The Shawnee encounter with the realities of manning, planting, and
              keeping helps expose one of the deep connections between law and political
              economy on which colonizing depended: legal ideas and instrumentalities
              facilitated the displacement of one population by another. The law of nature
              and nations furnished discourses of civility and barbarity upon which Europeans
              founded doctrines of just war and rightful occupation; together they
              created an aboriginal emptiness, the legal and spatial expression of “small
              consideration.” Metropolitan documents such as charters and treaties, and
              metropolitan practices such as tenures and deeds, filled the emptiness on
              the colonizer’s terms.
              But law did not merely facilitate displacement of former occupants in otherwise
              spontaneous processes of settlement, or simply service those migrants
              who happened to show up. Rather, law furnished the institutional technology
              by which the process of migration was organized. Law established the
              conditions of departure and of transit. It established the conditions under
              which, on arrival, migrants became producers. Overall, law helped mold
              strangers’ propensities for mobility into the actuality of empire.
              When we investigate the relationship of law to the process of English
              settlement we tend not to focus on law’s capacity to “frame” macrostructural
              development. We concentrate on the venerable trope that settlers carried
              with them the law they knew and applied so much as was appropriate to
              their new circumstances. We imagine bits of English law tucked away in
              the migrant’s cultural baggage. The bits are unpacked on the far side of the
              ocean like the odds and ends of an incomplete tool set, one more element in
              the self-absorbed history of setting up shop in an empty landscape. The trope
              has proven resilient for the very good reason that it conveys an important
              truth about the legal-cultural awareness and resources of ordinary migrants.
              But English law did a great deal more than furnish settlers with customary
              “English ways” to organize and render familiar their new localities. Law was
              2 “Creole” is used here to signify persons of European or African heritage born in the
              country, as distinguished from migrants (European or African) and from the indigenous
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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.
              In the late sixteenth century, at the very beginnings of English colonizing,
              the portion of the North American mainland that would eventually comprise
              the thirteen English colonies was home to approximately 500,000
              indigenous inhabitants, organized in a plethora of extended family groups,
              clans, and regional ethnic federations and engaged in subsistence economies
              dependent (in differing degrees) on hunting, gathering, and cultivation.
              Indigenous societies were not sedentary but their mobility was purposeful,
              following a settlement pattern of periodic intraregional migration among
              different forest or forest-edge areas. Indigenous population was already in
              decline as a result of European contact. In the Southeast, population fell
              some 23 percent during the sixteenth century. In the Northeast, the decline
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              214 Christopher Tomlins
              over the same period amounted to less than 5 percent. The arrival of the
              English in strength during the seventeenth century would see a catastrophic
              acceleration of indigenous population decline overall and a relative shift in
              emphasis to the Northeast as the locale of greatest loss. By 1700 the indigenous
              population of English America had fallen by half. Eighty percent of
              the decline occurred in the Northeast, where population decreased from
              346,000 in 1600 to 150,000 in 1700.
              Massachusetts Bay
              European disease wrought such devastation on coastal groups in the Massachusetts
              Bay region that travelers likened the bones and skulls of the
              unburied dead to those that littered the biblical Golgotha. The New England
              Charter (1620) invoked this indigenous disaster as a wonder worked
              by providence on “the Sauages and brutish People there” releasing “large
              and goodly Territoryes” into the hands of those who would “be directed and
              conducted thither.” For as Oxford’s Regius Professor of Civil Law, Alberico
              Gentili, wrote in 1588, “‘God did not create the world to be empty’. And
              therefore the seizure of vacant places is regarded as a law of nature.”3
              English migration to Massachusetts Bay began seriously in the early
              1630s, bringing some 21,000 people into the region during the decade.
              Early mortality and reverse migration winnowed this founding group to
              a resident population of approximately 13,500 by 1640, but although inmigration
              tapered off sharply thereafter, stable sex ratios and a relatively
              even distribution of wealth in the migrant population combined with
              the region’s benign (to Europeans) disease environment to encourage high
              rates of natural increase and rapid population growth. By the 1670s New
              England’s settler population approached 70,000; by the 1770s, 700,000.
              Continuous population increase meant constant pressure on available
              land. Complaints of overcrowding in settled areas were heard by the mid-
              1630s, only a few years after migration began. Crowding generated outward
              mobility and, inevitably, conflict with the region’s surviving indigenous
              societies. By the end of the 1670s, New England’s settlers had fought
              two major wars – 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
              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
              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.
              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.
              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
              “lest they should instruct foreigners to rival us in their several trades
              and manufactures.” An Act of 1381 revised and extended the prohibition,
              denying departure without license to all save only “the lords and other great
              men of the realm, and true and notable merchants, and the King’s soldiers.”5
              That act was in its turn repealed in 1607, but its authority is evident in the
              first (1606) Charter of Virginia, which specifically licensed the departure to
              America of “Sir Thomas Gates, Sir George Somers . . . ” and all who should
              willingly accompany them, “to travel thitherward, and to abide and inhabit
              there, in every the said Colonies and Plantations,” provided “that none of
              the said Persons be such, as shall hereafter be specially restrained by Us,
              our Heirs or Successors.” Nor did repeal appear to lessen the significance of
              the sovereign’s claim to a general authority over departure. Thus the second
              (1609) Charter of Virginia granted explicitly “that it shall be lawful and
              free” for promoters of the colony and those they might take with them to
              depart and inhabit “the said Plantation,” as in 1606. The grant was repeated
              in the third (1612) Charter. In the New England Charter, eight years later,
              the Crown in similar fashion expressly granted the New England Council
              lawful authority to take and transport to “the said Plantation in New
              England, all such and so many of our loveing Subjects . . . as shall willingly
              accompany them.” Cecilius Calvert’s Maryland Charter (1632) included a
              grant of “Power, License and Liberty, to all the Liege-Men and Subjects,
              present and future, of Us, our Heirs and Successors, except such to whom it
              shall be expressly forbidden, to transport themselves and their Families to
              the said Province.” The same is to be found in the Carolina and Pennsylvania
              charters. The English Solicitor General again asserted the Crown’s authority
              over its subjects’ departures in 1718, when restrictions were imposed on
              5William Blackstone, Commentaries on the Laws of England: A facsimile of the First Edition of
              1765–1769, 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
              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.
              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
              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
              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.
              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
              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
              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.
              Cambridge Histories Online © Cambridge University Press, 2008
              234 Christopher Tomlins
              fornication, and runaway punishments were all reenacted, although physical
              disfigurement of persistent runaways (branding and hair cropping) was
              discontinued. The default terms of servants imported without indenture
              continued to vary: those above age 16 were now required to serve five years,
              those below until age 24. Age on entry was to be determined exclusively
              by the courts. Prohibitions on trading with servants were also reenacted. For
              the first time, however, servants gained specific protections in an enactment
              that ordered “compotent dyett, clothing and lodging,” required “moderation”
              in correction of servants, and once more emphasized court oversight.
              In 1677, masters were foreclosed from renegotiating indentures with their
              servants outside the presence of a justice.
              The terms confirmed during the 1660 revision remained in place for the
              rest of the century. The Assembly took up the subject again, however, in
              1705. This renewed attention came toward the end of a momentous period of
              transition in the sources ofVirginia’s labor supply that had begun in the years
              after Bacon’s Rebellion (1676), away from the youthful English servants who
              had provided the bulk of the colony’s bound labor force since the 1630s
              toward overwhelming reliance on the importation of enslaved Africans. The
              capstone was “An Act concerning Servants and Slaves” a hybrid enactment
              that established a comprehensive legal framework for the slavery that would
              dominate the eighteenth century within a restatement of the statutory law
              of servants that had been developed during the seventeenth.
              Slaves were most likely present in Virginia within a decade of the founding
              of Jamestown. But although slaves were distinguished from servants in
              daily life by the permanence of their servitude, nothing in the colony’s early
              laws differentiated slavery from servitude per se. In fact, slaves and servants
              shared the distinction of originating outside the colony. Only when the
              slave population began to grow rapidly, and – equally important – when
              direct importation from Africa wrought substantial changes in its character,
              was slavery in the Chesapeake named, defined, and placed.15
              The first reference to slaves as such in Assembly legislation cannot be
              found until 1655/6, when it was provided that Indian children taken as
              15 It is clear that almost as soon as they appeared in Virginia, Africans were considered
              legally distinct from whites. It is also clear that most were considered slaves – that is,
              permanently in bond to others – from the moment of their arrival, presumably because
              they were purchased and held as such. But it is less clear that Africans as a racial category
              were identified as slaves; some Africans were clearly considered servants, and some became
              freemen. Those who were enslaved were legally distinguishable by property law from
              those who were not. And eventually those who might be enslaved were identified by legal
              elaboration of racial categories. But neither property nor race concepts per se furnished the
              substantive content of slavery inVirginia law: that content came from the law of servitude,
              elaborated over time and adapted during the last three decades of the seventeenth century
              to the condition of persons serving for life as their numbers became sufficiently large to
              require distinct treatment.
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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
              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
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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
              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 “lawfull 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
              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 “love and brotherly kindness,”
              however, came a certain nostalgia for an organic English past and
              belief in the inevitability of ranked hierarchy in relations among society’s
              different orders. These sentiments found their way into plans for Pennsylvania’s
              future population. Abhorring indiscriminate settlement, Penn planned
              agricultural villages of up to twenty families, each set in a 5,000-acre tract,
              recalling the nucleated, manor-centered settlement pattern of downland
              England. As to the organization of migration, Penn’s earliest agreements
              with his co-investors identified indentured servitude as the means to facilitate
              labor transfers. The “Certain Conditions or Concessions” agreed in
              1681 contemplated a headright system of land grants that would reward
              the first purchasers of Pennsylvania land for mass importations of servants
              along Chesapeake plantation lines; the Laws Agreed Upon in England (1682)
              sketched the beginnings of a regulatory system to control the process of
              servant importation. Approximately one-third of the first flurry of arrivals
              recorded between 1682 and 1686 were indentured servants.
              At its first two meetings in 1682 and 1683, the provincial Assembly
              adopted a detailed set of disciplinary and police measures to frame servitude.
              These measures gave local courts direct oversight of servant discipline
              and conditions of work, established a servant registry, adopted a pass law,
              penalized harboring or trading with servants, and prescribed five days additional
              service for each day an absconding servant was absent, together with
              the costs of pursuit. The Assembly also established statutory terms of service
              and freedom dues for servants imported without indenture (five years
              for those 17 or older, and until age 22 for those younger than 17). Codified
              in 1700, these measures remained the core of Pennsylvania’s statute law
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              Law, Population, Labor 245
              of servitude throughout the eighteenth century. None ever touched wageworkers
              or artisans.Wages were not regulated. Hirelings were not required
              to remain in their employment. Unauthorized departure might mean at
              most the forfeiture of unpaid wages.
              The “eutopolitan” overtones of the proprietor’s original plans are clear.
              Pennsylvania was an elaborately planned colony. Orderly settlement, the
              importation and control of population through the mechanism of servitude,
              detailed oversight of the performance of work, and provision for supervision
              of the movements of population in general (Pennsylvania’s pass law
              required all persons traveling beyond their counties of residence to carry
              official certification of their place of residence on pain of incarceration as
              a presumptive runaway) were all part of a single vision of controlled harmony.
              But important contradictions existed between Penn’s conception of
              the colony’s organization and the conditions characteristic of the English
              pastoral uplands from which most of its early settlers actually came. Penn’s
              nucleated agricultural villages were displaced by “sprawling townships” of
              dispersed farmsteads producing a wide variety of crops and home manufactures,
              typical of the pastoral uplands. The organization of labor, too, varied
              from the proprietor’s model. First, the character of servant migration into
              Pennsylvania did not follow the pattern that had prevailed in the Chesapeake.
              In the earliest period, it was not dissimilar – 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
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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
              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,
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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.
              “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,
              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.
              Cambridge Histories Online © Cambridge University Press, 2008
              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
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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.
              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.
              Cambridge Histories Online © Cambridge University Press, 2008
              258 Sally E. Hadden
              commonly associated with slavery. The closest analogy in English law was
              apprenticeship law, by which a young person wishing to learn a craft was
              bound by indenture to a master’s service for a term of years. During the
              period of service, the apprentice was under the full legal control of the master,
              who could punish him for neglecting service, absconding, or marrying
              without consent. However, a master who failed to provide food, clothing,
              or training to the apprentice could be fined and the apprentice freed from
              his indentures. Indentured servants brought from England labored alongside
              African slaves in the Caribbean and British North America through
              the mid-seventeenth century, and early colonial statutes frequently refer
              to both groups together when describing punishments for misbehavior or
              running away.
              English law offered a few models for slave laws in the western hemisphere,
              but Spanish law would be the source for most early New World slave
              laws. In Europe, canon law and Roman civil law were engrafted into Las
              Siete Partidas, the thirteenth-century Spanish code compiled by Alfonso
              X of Castile that would serve as the legal foundation throughout Spain’s
              empire in the Americas, including Spanish territories that became part
              of the United States like Louisiana, Texas, and California (and it remains
              Spain’s central legal authority to the present day). An indication of slaves’
              lowly status in Spanish society is that laws about lawyers, women, and
              even abandoned children all precede laws about bondsmen, found in the
              Fourth Partida. Slaves were defined as captives of war “who are enemies
              of the faith,” that is, non-Christian, or the children of female slaves of
              any faith. As in Africa, most slaves in Spain could not be distinguished
              racially from their masters, and Spanish law did not define servitude racially.
              The Spanish master was endowed with nearly complete authority over an
              enslaved person, but was restricted from killing, maiming, or seriously
              injuring a bondsman. Except for these few injunctions, Spanish codified
              law was silent on many points – the proper religious instruction for slaves,
              for example, or their right to marry, or their rights to food, clothing, and
              shelter at their owners’ hands. These omissions resulted from the relatively
              small population of bondsmen found in early modern Spain, and possibly
              from the overarching presumption that slavery was not intended as a lifelong
              status, but a temporary one. Title XXII of the Fourth Partida specified
              numerous methods by which a slave could obtain her freedom, for strong
              presumptions pervade the code that “all creatures in the world naturally
              love and desire liberty,” and that a Christian master would grant freedom to
              a worthy slave. These presumptions in favor of freedom over slavery would
              find their way into Spanish colonial laws, but would be lost in the sixteenthcentury
              transmission of such laws from Spanish to English settlers in the
              western hemisphere.
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              The Fragmented Laws of Slavery in the Colonial and Revolutionary Eras 259
              The Europeans who settled the NewWorld arrived with varying degrees of
              knowledge of slave law and various justifications for those laws. The French,
              Portuguese, and Dutch, like the English, set up colonies on Caribbean
              islands or the mainland, but at the outset had few laws and no comprehensive
              code to regulate enslaved persons. French coutumes proffered no law of slavery;
              the Ordena¸coes Filipinas, the Portuguese legal compilation of 1643, contained
              little more. The States-General assembly of the Netherlands issued virtually
              no laws about slavery; any slave arriving in the Netherlands was automatically
              free. The assembly preferred to leave such matters in the hands of the
              privately controlled Dutch West India Company, which in turn left slave
              control and punishment largely in the hands of individual masters. Only the
              Spanish came to the western hemisphere relatively well equipped. Their Las
              Siete Partidas mandated that children follow the condition of their mother,
              prohibited atrocities by masters, and preferred emancipation. Regardless
              of nationality, many European colonizers shared in the Christian assumption
              that the “curse of Ham” justified the enslavement of Africans. Though
              scholars such as David Brion Davis have questioned whether this specific
              rationale actually swayed Europeans in the sixteenth and seventeenth centuries,
              Winthrop Jordan and others have shown convincingly that racism
              and greed persuaded many European enslavers to prey on Africans as slaves
              to export to the NewWorld.
              As the size of the Spanish empire in the western hemisphere grew by leaps
              and bounds, so too did its slave population.With it came local regulations to
              control slave activities and mandate proper behavior by slave owners. King
              Philip IV ordered that all colonial Spanish law – including slave laws – be
              gathered, digested, and published. The result was the first Recopilaci´on de
              las leyes de los reinos de los Indias (1681), commonly called the Recopilaci´on de
              Indias. The French also collected their local slave laws together in 1685 and
              published them in the early eighteenth century as the Code Noir. But the
              Code Noir, like the Recopilaci´on, was incomplete by itself. The slave codes
              had to be supplemented by each colonizer’s national law, like Spain’s Las
              Siete Partidas, and also by regulations crafted by district or city magistrates
              who had the power to enact local slave regulations. Colonial officials passed
              decrees that continued to encourage emancipation while placing numerous
              restrictions on slave masters, but the extent of their actions remains largely
              unknown. Because the sources of slave regulation were so numerous and
              the laws themselves so scattered, no complete collection of Spanish colonial
              slave law has ever been compiled.
              For the Spanish colonial empire, the detail of local and regional enactments
              has not been much explored – the historical record is too fragmented.
              Cambridge Histories Online © Cambridge University Press, 2008
              260 Sally E. Hadden
              It is known, however, that Spanish slave law expanded dramatically and
              encompassed many more subjects than did English law for bondsmen. Historian
              Elsa Goveia, expert on slave laws of the Caribbean, has asserted that
              “[t]he English government never, until the nineteenth century, showed so
              careful and sustained an interest in the subject of slave regulations as did
              the government of Spain from earliest times.”
              Despite the extraordinary diversity of slave law, each island, each
              colony developed laws to regulate the conduct of bondsmen. By the midseventeenth
              century, some islands colonized by the English, like Barbados,
              had enacted their own slave codes (1661). In part, code development was
              connected with the successful transition to raising a cash crop – sugar,
              in this case – that fueled the rapidly increasing number of African slaves
              imported by Caribbean colonizers. Careful examination of the Barbadian
              code’s provisions reveals elements drawn partly from English legal conceptions
              about bound labor and from neighboring Spanish and French island
              slave laws. Barbadian colonizers who had not known slave laws in their
              home country invented, transplanted, and borrowed eclectically, as necessary.
              Codes, more common to the Roman legal tradition from which Las
              Siete Partidas evolved than in English law, thus became integral to slave
              control in English settlements.
              In Barbados, the impulse to craft the code may have been inspired by the
              rising population of bondsmen, By the 1670s, Africans had become a majority
              on the island. However, the preamble to the “Act for the Better ordering
              and governing of Negroes” speaks neither of slave demography nor of fears
              of insurrection. White Barbadians instead stressed slaves’ difference: their
              “heathenish brutish” behavior and tendency to run away had become insupportable.
              The scattershot slave laws previously enacted had not “mett the
              effect . . . desired” because masters and overseers had not “beene so carefull
              of their obedience and complyance” as they ought. By enacting a comprehensive
              code, Barbadian legislators hoped to draw the slave laws to the
              attention of all whites, so that slave conduct would be better regulated
              throughout the island.
              Because the Barbadian slave code served as a model for codes enacted
              in other English colonies – Jamaica (1664), South Carolina (1690/1691),
              and Antigua (1697) – its contents merit close scrutiny. The twenty-three
              articles covered several broad topics, but focused on the regulation of slave
              movement, discipline, slave crimes, and protection of the enslaved. The
              code did not address legal issues like purchase, sale, mortgaging, or other
              financial transactions involving slaves: control, not commodification, was
              the legislators’ paramount concern. The law dictated the type of pass or
              ticket slaves must carry when working away from their master’s plantation
              and mandated that whites (owners and non-owners alike) were to inspect all
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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
              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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              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.
              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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              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
              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.
              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
              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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              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.
              Although slave revolts and insurrections usually resulted in tougher slave
              laws, as was the case after the Stono rebellion in 1739 and the New York
              insurrection of 1741, the most dramatic changes in the mainland colonies’
              regulation of bondsmen were precipitated by the stresses associated with
              the American Revolution. The arrival of British and Hessian troops during
              the war offered new hope to slaves seeking an alternative to a lifetime in
              bondage. In November 1775, the royal governor ofVirginia, Lord Dunmore,
              proclaimed that slaves belonging to rebellious colonists who chose to serve
              the British army would be emancipated, triggering a flood of runaways
              bound for the British lines. In consequence, slave patrols stepped up their
              enforcement of the slave laws, and Virginia rebel authorities increased punishments
              for recaptured runaways. Where earlier fugitives might have been
              whipped by the patrols and returned to their owners, wartime runaways
              recaptured in Virginia were liable to permanent confiscation by the patriot
              authorities and placed at work in the state’s iron mines, where many of
              them died. As the British army moved through different regions of America,
              however, attempts to enforce slave laws restricting mobility after 1776
              met with limited success; wartime enlistments drained men from slave
              patrol rosters at the very time when slave runaway attempts skyrocketed.
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              The Fragmented Laws of Slavery in the Colonial and Revolutionary Eras 275
              Estimates suggest that as many as 50,000 slaves attempted to reach British
              encampments during the course of the Revolution. Slaves who actively
              aided the British and were subsequently recaptured were often executed for
              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
              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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              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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              The Fragmented Laws of Slavery in the Colonial and Revolutionary Eras 277
              Quock Walker freedom case (1783) that “the idea of slavery is inconsistent
              with our own conduct and Constitution.” Although some scholars point to
              QuockWalker as the end of slavery in Massachusetts, Cushing himself would
              date its demise some three years earlier, to the adoption of the 1780 state
              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.
              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
              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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              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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              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.
              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
              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
              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.
              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.
              Cambridge Histories Online © Cambridge University Press, 2008
              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
              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
              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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              The Transformation of Domestic Law 291
              to substantiate and increase many aspects of domestic hierarchy, including
              even that of employers over employees. Overall, the common law developed
              simple parallel categories that tended to increase the power of the patriarch.
              New hierarchies came into being alongside older ones.
              Largely outside the common law, meanwhile, revolutionary reforms and
              principles undermined older assumptions about status by idealizing consent
              and equality. Ideally, relations between adult men would be based on
              contracts, freely entered. Contract challenged the principle that one was
              born into a status that the law would confirm. Instead, adult men would
              gain some influence over their status at work and more control over their
              wives and children. Men as fathers, that is, gained grounds to challenge
              men as masters, such that poor children, for example, might not be as easily
              removed from their fathers and forcibly apprenticed.
              The heritage of the Revolution and the legislative reforms that followed
              in its wake proved to be more ambiguous for women and children. Their
              opportunities to choose their status were sharply limited: women could
              choose mostly at marriage, and children not at all. Also, for some adult
              men – and certainly for their wives and children – these norms did not
              apply at all. They were slaves, not “free laborers.” They did not possess
              legally recognized marital rights or custodial powers over their children.
              Their master owned both. Slavery became the major continuation of older
              common law norms about the rights of Lords.
              Once this history is unpacked, it is apparent that the domestic law of the
              early nineteenth century was more complex than Reeve’s simple presentation
              suggests. Many of his categories highlighted the principle of consent.
              In the same breath they raised a fundamental question: whose choice? Blackstone’s
              common law allowed choice for some, but not others.
              A final preliminary. Both inside and outside the common law, we shall
              see, many of the principal reformers who rose to challenge the rights of
              Lords in the seventeenth century (who argued for the rights of men) were
              from Puritan or dissenting backgrounds. In both America and in England,
              the political and legal debates of the seventeenth century had religious
              dimensions. Puritans and dissenters voiced the most profound challenge
              to the rights of Lords and argued for the rights of husbands and
              parents. Migration and civil war created opportunities to put new practices
              in place, first in Puritan New England and then in England during
              the Interregnum. Many of the most important common law legal reformers,
              men like Sir Matthew Hale, came from dissenting backgrounds. Their
              arguments combined with the larger debate in democratic/republican political
              theory that challenged the rights of birth, of Lords, and especially of
              the divine right of kings. Religion, politics, and law were in many ways
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              292 Holly Brewer
              I. THE OLD COMMON LAW
              In the sixteenth and seventeenth centuries, throughout Anglo-America,
              the family was the basic unit of society. Perhaps that has always been true.
              Yet, relations of power within families – 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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              The Transformation of Domestic Law 293
              critical because most people made their living from the land. Lack of access
              to land meant that many people had no choice but to work for others as farm
              laborers or domestics. If they refused to work, they could be forced under
              vagrancy statutes into contracts of a year, or of many years, depending on
              their age.
              At the dawn of its seventeenth-century colonization of the New World,
              England suffered from significant poverty. By some estimates, half the population
              was poor. Primogeniture, enclosure, and the dissolution of the older
              Catholic system of caring for the poor with the Reformation added up to
              a near crisis. Contemporary tracts and court records dwell on the problem
              of vagrants. The laws were harsh. There was no minimum age for forced
              service: by Elizabethan statute, a child of any age could be imprisoned until
              he or she signed a contract agreeing to labor until the age of 24 for a boy
              or 21 for a girl. The only questions were the poverty of the family or individual
              and whether anyone actually wanted their labor. The laws did not
              always work to the advantage of landowners: stories were told of masters
              forced to accept unwanted laborers. Perhaps so. Yet it is clear that the laws
              that denied ownership of landed property to one group and simultaneously
              made them the partial property of others are central to understanding the
              legal principles undergirding authority and domestic order in England and
              its colonies.
              By these principles, hierarchy regularly trumped kin-family relations.
              Masters and mistresses often had authority over others, including others’
              children and others’ wives and husbands. The elements of domestic hierarchy
              that we tend to assume went hand in hand – the powers of masters and
              those of husbands and fathers – were thus often in direct conflict. This was
              not true of all families of course. England had many tenants and smallholders
              who were not directly “in” the household of others and had their own
              separate families. Servants who “lived in” with their masters and mistresses
              were of course much more dependent than tenants. However, landlords
              often had claims over smallholders that made these men and women dependent
              on them in various ways. To acknowledge this dependency, which was
              often legally explicit and had important cultural and political consequences
              (such that those who were dependent on others were not allowed to vote),
              is to begin to understand that domestic order had a broad, multilayered
              Principles of dependency were eminently transportable. Consider the fate
              of some of the first immigrants to Virginia. Faced with a shortage of voluntary
              immigrants and not much money, the Virginia Company persuaded a
              number of London churches to participate in a benevolent enterprise. The
              Company argued that children who had been apprehended for the crime
              of “vagrancy” (not having employment) should not be apprenticed locally.
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              294 Holly Brewer
              Instead the churches should pay for them to go to the New World and
              work there. In exchange, the Virginia Company promised that at the e,nd
              of their service of seven or more years, the children would be given land, a
              reward unheard of in England. The churches agreed to underwrite the costs
              of passage. Unfortunately, the laws of England in 1618 required that the
              children themselves sign the labor contracts, and many refused to do so. To
              circumvent this restriction, the Privy Council granted a special exemption,
              forcing the children to go to Virginia and serve masters. Neither the laws
              nor the Privy Council required the consent of their parents. Of course, on
              some level this was really charity by the London churches; the parishioners
              thought they were offering the children a chance at a better life, including
              not only land but also training in “husbandry” (farming). Children needed
              such training to make a way for themselves. The very premises of the policy,
              however, revealed a society in which the labor of some for others in a
              property relation was normal, rank was central, and the integrity of poorer
              families unimportant.
              The story also incorporates the promise of free land – 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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              The Transformation of Domestic Law 295
              British North America. White servants could complain of mistreatment
              to authorities (unlike slaves), but masters could punish both servants and
              slaves corporally – indeed could even kill them without penalty if death
              occurred during the course of punishment.
              While the authority of the head of household was strongest over his
              servants, a great deal depended on the type of servant or employee and the
              status of that person. In the colonies, many white laborers (if born there or
              once freed from their initial indenture) could negotiate contracts that gave
              fewer privileges to their employers and did not place them firmly under a
              master’s control. In England, in contrast, by the early eighteenth century,
              new restrictions were emerging that brought more forms of employment
              within the rubric of master/servant relationships, including many protoindustrial
              occupations, such as piecework and weaving. Even employees
              who did not live with their employers began to be seen – both at statute
              and common law – as governed by master/servant relations, with masters
              being given much greater privileges over their workers.
              How was the role of head of household acquired? Status (derived from
              land ownership, militia or other title, financial resources, or age) played
              an important part. A wealth of records and studies indicate that whether
              an individual became a servant – or a master – depended greatly on status.
              Service was partly a life-cycle phenomenon, in that many servants
              were adolescents or adults younger than 25, saving to marry. But not all
              youth underwent a period of service. Indeed, many masters were youthful
              themselves. Although service, then, has been properly recognized as a part
              of the life cycle of poorer and middling people in England, it was not a
              “natural” institution. Rather, service was an institution designed to benefit
              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
              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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              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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              The Transformation of Domestic Law 299
              “bed and board” separation (not the equivalent of divorce) that required him
              to provide her with alimony payments. Still, we must also be conscious of
              limits. The fact that in separations the husband had to provide alimony –
              and that he often remained in charge of the land that both had brought
              to the marriage – is strong evidence of assumptions and power relations
              underlying marriage during this period. Neither the bond he posted to
              keep the peace (for which the wife’s estate was also potentially forfeit) nor a
              separation that offered only maintenance could provide complete protection
              for a wife.
              Women’s own goods belonged to them in marriage, and afterward they
              had legal disposition of them. Men’s wills did not include their wives’
              personal possessions. Consider the example of Magdalen Trabue Chastain,
              who lived in Virginia in the early eighteenth century. She owned several
              pieces of jewelry that were not listed in the wills or inventories of either of
              her two husbands, indicating she disposed of them herself.4 Sometimes the
              presence of the wife’s goods was evident in joint suits, where husband and
              wife were both listed in the attempt to recover a debt owed to only the wife
              before marriage. Wives were also often administrators of their husbands’
              estates, with legal responsibility for paying the debts and managing the
              whole process. Their legal activities, in short, were extensive.
              One factor that historians have explored in explaining women’s legal position
              in the colonies is the prevalence of unbalanced sex ratios. In Virginia,
              men greatly outnumbered women in the early years, putting a premium on
              marriage. An excess of men grants women a better negotiating situation in
              relation to prospective husbands, and hence opportunities for greater autonomy.
              High death rates meant that women were often widowed, sometimes
              even before bearing children, which increased their chances of accumulating
              their own property through inheritance of entire estates, adding to
              their attractiveness (and chances for autonomy) to potential husbands. Historians
              have also pointed to the legal exigencies of the frontier to explain
              women’s relative autonomy – to colonial judges who found common law
              rules unreasonable given the circumstances of settlement.
              Though such factors may have had an impact on women’s relative legal
              opportunities in the colonial period, however, they were not decisive. A
              shortage of women could as readily worsen their collective situation as
              improve it. Those who seek a rare resource often try to control it once
              found. Fewer women could mean individual oppression and isolation, not
              collective strength. But the larger problem with interpretations that dwell
              4 Joan R. Gunderson and Gwen Victor Gampel, “Married Women’s Legal Status in
              Eighteenth-Century New York and Virginia,” Willam and Mary Quarterly, 3rd ser., 39
              (1982), 127.
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              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
              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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              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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              The Transformation of Domestic Law 303
              for poor whites in the Southern colonies. More common, too, in the South
              were wealthy households whose children learned early the skills and habits
              of command. Thomas Jefferson acknowledged the phenomenon in order to
              criticize it, late in the eighteenth century.
              Though custodial rights were weak, fathers might exert indirect control
              over their children through inheritance. In the colonies testamentary
              power was mediated by the availability of western lands, which meant that
              children were less dependent on inheritance for their livelihood than in
              England. Nevertheless inheritance was a source of real power, especially in
              New England where fathers lived to an advanced age. In Virginia, fathers
              had less testamentary power. In the seventeenth century, fathers often died
              young, and by the eighteenth century estates were often entailed, allowing
              fathers less choice in the disposition of their estates and hence less control.
              Inheritance practices in the middle colonies varied, but tended to be more
              similar to those in New England. There too, longer life spans meant fewer
              encumbrances on estates.
              As a concept, custody in its modern sense of parental authority and
              responsibility simply did not exist, partly because the idea was not needed
              in a world where children could enter their own binding contracts and possessed
              a legal identity no different from that of adults. Children were rarely
              distinguished as such in legal records. They could be punished for many
              different crimes – especially once older than age 8 – and could form many
              kinds of contracts. Thus, pre-pubescent children could and did enter into
              marriage contracts, usually to cement family alliances or alleviate property
              concerns. (Children marrying younger than 12 or 14 could sue for divorce
              if the marriage had not been consummated.)
              The category of a ward needing a guardian was an exception, for it
              specifically recognized minority; however, it was applied only to heirs of land
              and the guardian’s responsibilities were limited in scope. At age fourteen a
              ward was empowered to choose his or her own guardian. Some guardianships
              ended at that point, some at age seventeen or eighteen. Some heirs and
              heiresses could evade guardianship if, for example, their father had made
              them executor of the estate. All that would happen is that the estate would
              remain in a holding pattern until the minor executor reached age seventeen.
              Advisors (usually also designated in the will) had little authority to dispose
              of or manage the estate without consulting the heir.
              Childhood per se entailed few legal restrictions. Teenagers could be
              elected to Parliament in England or to the House of Burgesses in Virginia
              during the seventeenth century. Legally a male could hold most appointed
              offices at age eleven. Army and navy officers – a patronage appointment –
              were frequently in their early teens. In England and Virginia one qualified
              to sit on a jury at age fourteen (higher in New England). At least in the
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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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              306 Holly Brewer
              The Institutes contain almost no discussion of the powers of parents.
              In contrast, discussions of the powers of guardians fill many pages. But
              guardianship is mostly a matter of property management – most orphans
              did not have guardians. In other words, children per se were not thought to
              be dependent and incapable; it was the inheritance of land that created the
              requirement for a guardian. Even then, most guardianships were sharply
              limited and ended at age 14.
              Other early seventeenth-century law books present a similar picture of the
              law while filling a few gaps. Like Coke’s Institutes, Dalton’s Countrey Justice –
              a guide for local justices of the peace, men usually without legal training –
              was extremely popular not only in England during the seventeenth century
              but also in the North American colonies. It contained large sections on the
              statute of artificers (sometimes called the poor law by historians), indicating,
              for example, how a landowner might force another to labor for him and
              what remedies protected him from the laborer’s early departure from the
              covenant. It also underlined the centrality of status to criminal penalties: a
              servant who killed a master could be drawn and quartered for the crime of
              petty treason, whereas a master killing a servant in the course of punishment
              would usually be excused altogether.Amaster who beat a servant was within
              his rights; a servant who beat his master could be imprisoned for a year.
              Dalton’s attention to criminal issues is not surprising, given that the
              jurisdiction of a justice of the peace would routinely encompass petty crime.
              But a modern eye quickly notices his relative neglect of questions relating to
              wives or children. The silence suggests he had no broad vision of “domestic”
              law. Other important guides give the same impression. Systematic study of
              them is even more revealing. By pursuing three of the key issues that appear
              in parallel in later guides, we realize just how different the law was at this
              juncture. First, many guides compared the powers of a master to those of a
              husband in matters of petty treason, in which a servant or wife who killed a
              master or husband was considered comparable to a subject who killed a king
              and punished as though guilty of high treason (drawn and quartered before
              execution or burned alive). However, a son who killed his father was not
              deemed guilty of petty treason and would not be liable for such extreme
              punishment. Second, the guides contain no discussion of witnesses, and
              [Dower only applies when the lands in question belonged to the husband beforehand.
              Note also, that there are some cases when the man owns entailed land, where the wife
              cannot claim dower.]
              Sect. 35 “Curtisia Dengleterre”; “Tenant by the Curtesy of England is where a man
              taketh a wife seised in Fee-simple, or in Fee-tail general, or seised as Heir in Tail especial,
              and hath Issue by the same wife, Male or Female born alive, albeit the Issue after dieth
              or liveth, yet if the Wife dies, the Husband shall hold the Land during his Life by the
              Law of England.”
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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),
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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.
              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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              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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              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
              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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              to benefit working men, however, were court decisions that began to limit
              employers’ ability to physic