Threads of Shared Experience

Shared experiences channeled the development of law in all of the colonies. Colonial America was overwhelmingly agricultural and rural, and the rhythms of the land in every colony dictated the priorities of the law. Questions of holding, alienating, and inheriting land, the status of indentured servants and slaves who worked on it, the contractual issues raised by the sale of goods from it, and the penalties to be suffered when livestock or fire strayed over it crowded the private law agenda of every colony.

Despite its divisiveness, religion was also a unifying force in the colonial experience. Post-Reformation Protestant thought proclaimed the existence of fixed standards of justice, based on Divine Reason that was superior to man-made law. In the seven

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teenth-century colonies, this higher law found expression in the idea of natural law. "The Law of Nature," explained the Reverend John Davenport in 1669, "is God's law, written as with a pen of iron and the point of a diamond."³ By the eighteenth century under the influence of the Enlightenment, the notion of higher law became more secular and rational; still loaded with moral imperative, it found its way into emerging American constitutional law, first in the form of the Declaration of Independence and later in the Constitution.

In yet another way, religion shaped early American law. The Protestant practice of making covenants, in New England and elsewhere, encouraged the view that law should flow from a consensus based on written agreements. In the post-Reformation world, amidst the growth of commerce and international trade, the law increasingly became a tool rather than a set of rigid and unalterable prescriptions. The savagery, and perhaps the mystery, of the New World invited the colonists to believe that they rather than kings could mold their own social choices. Disaster, after all, always lurked close to the surface. The Pequot Indians in the 1630s, for example, ambushed five colonists, dispatching three immediately, roasting one alive, and "the other came down drowned to us . . . with an arrow shot into his eyes through his head." ⁴ Survival under these circumstances depended on enforced discipline, but the early colonists also recognized that mutual assent to rules offered the best hope for survival in the face of danger.

The famous Mayflower Compact of 1620 typified the way in which the first colonists blended religious authority and consent. The compact was a contractual agreement in which the Pilgrim Separatists bound themselves into a single government. The enormous distance from England and the looming challenge of the North American wilderness induced a sense of mutual commitment among like-minded believers.

Political covenants appealed to ordinary settlers as well as religious ideologues. Seventeenth-century New England towns adopted bylaws that specified the operations of government. In other instances, adventurers pledged their mutual commitment at the beginning of a new enterprise. For example, the eight original founders of Springfield, Massachusetts in 1636 drew up a compact. "Wee whose names are underwritten," it began, "beinge by God's p'vidence ingaged to make a Plantation . . ., do mutually agree to certayne articles and orders to be observed and kept by us and our successors."⁵ Personal liberty and individual order depended on God's laws but also on understood compacts.

It may seem incongruous that a system of religious authority could stimulate the notion that law ought to be based on individual will. Yet that was the case. For too long we have fixed our eyes on the sources of early American law without appreciating fully the importance of the form in which it appeared. The colonial enthusiasm for codes offers a good example of the way in which a moral order based on religious authority expressed itself through the form of consensual, rational law.

No man in a position of leadership who came to North America could have been unaware of the agitation for law reform in England. One of its chief objectives was to produce a rational body of readily understood and readily obeyed law. In the Massachusetts Bay colony, for example, Puritan leaders urgently sought such a formulation as a way of distancing themselves from England. Differences over content slowed adoption. The Reverend John Cotton in 1636 offered a code of law known as "Moses, His Judicials," that wove together secular legal ideals and Hebraic law. The "Judi

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cials" were never adopted, but the quest for a set of uniform rules persisted. In 1641 Nathaniel Ward, another minister and one of the colony's first trained lawyers, formulated the "Body of Liberties," but it too failed to receive formal support.

These disagreements among the Puritans typified the colonists' unease with the English common law tradition. But they also bred political contention based on frustration about what the law was. Dr. Robert Child in 1646 issued his "Remonstrances" against John Winthrop and other magistrates on the Massachusetts General Court, the chief governing body of the Bay colony. Child complained that the colony had deviated from the "Fundamental and wholesome Lawes" of England. He insisted that the religious leaders of the Massachusetts Bay colony should broaden the base of church membership and, in so doing, secure for all colonists--Puritan and non-Puritan-- "civil liberty and freedom." ⁶ Child's complaints fell on deaf ears (he was subsequently convicted of defaming the government and slandering the church), but two years later the Massachusetts Bay colony did adopt a written code that met some of Child's demands.

The Book of the General Lawes and Libertyes of the Massachusetts Bay colony in 1648 was the most successful of the Puritan efforts to formulate a rational, consensual rule of law. The Puritans were not democrats, but they were sensitive to the need to win obedience through shared commitment. The Lawes and Libertyes injected religious fervor into the English common law heritage. Each crime and punishment, for example, cited biblical authority: "If any man or woman be a witch. . . . they shall be put to death. Exod. 22. 18 Levit. 20. 27. Deut. 18. 10. 11." ⁷

The Lawes and Libertyes spread over fifty-nine pages and, despite its religious configuration, it influenced other colonies. Pragmatic legal borrowing was quite strong. Provisions of the code migrated widely to Connecticut, New York, New Jersey, Pennsylvania, and even Virginia. The code jettisoned much of the technical apparatus of the English common law. The profusion of biblical citations should not obscure the quite practical way in which the code dealt with matters of crime, business, and economics. Typical was the provision under the heading "Summons" that dispensed with the intricacies of process in England when issuing a summons or arrest warrant. The Lawes and Libertyes mandated a simple course of action: "No . . . Judgement or any kinde of proceedings . . . shall be reversed on any kinde of circumstantial errors or mistakes, if the person and the Cause be rightly understood and intended by the Court."⁸

Colonial leaders everywhere sought the certainty of written codes. The form of the law seemed as important as its content. Some codes were quite harsh, even draconian, as was Dale's Code of 1611 in Virginia. But even there, early settlers knew in writing what rules governed their actions. Named after Sir Thomas Dale, the colony's first governor, the Code treated violators roughly. For instance, it specified execution for persons found to have stolen from public stores or boats. Such provisions reflected the grim realities of the "starving time" in Virginia, but the Code enunciated "Laws Divine " and "Moral" as well as "Martial." ⁹ All who participated in the colony had first to know the rules, to accept the notion of Divine Reason behind them, and to conduct themselves with the best interests of the group as a whole in mind. As conditions improved in Virginia, Dale's Code faded. The House of Burgesses, America's first legislative assembly, appeared in 1619, and its elected members gradually crafted a more supple body of law.

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In every other colony, similar legislative bodies appeared as colonial Americans busily marshaled their own resources to fashion societies out of the wilderness. The ready availability of property made the franchise extensive. In the eighteenth century, between 75 and 90 percent of the adult white male population was qualified to vote. Social deference proscribed sharply the limits of direct popular control over government, and the lawmaking process remained tightly held by the upper ranks of society. Still, popular will was a genuine source of consensual authority in every colony, and its growth during the eighteenth century contributed directly to the eventual acceptance of a popular will theory of law. That is, legitimate law had to be derived from the people.

All of the colonies developed law under the umbrella of imperial authority. The imperial system changed from the seventeenth to the eighteenth centuries in reaction to developments in English society. Regicide, Civil War, Restoration, and the ascendancy of Parliament all shook seventeenth-century England. The commercial and mercantile interests that gained power following the Restoration expected the American colonies to contribute directly to the welfare of the empire. Parliament in 1691 established the Board of Trade to oversee mercantilist policies aimed at bringing the colonies fully within the imperial economy. New and more comprehensive regulations--and squads of officals to administer them--appeared. These officials brought with them a determination to impose English common law, in all of its complexity, on the colonies. The common law became a tool of the empire, a means of bringing uniformity to the seemingly ragged and disjointed practice of law in the American plantations. Although forced to acknowledge the imperial demands, Americans actively shaped their institutions to fit more their needs than those of their English masters.

Date: 2015-01-29; view: 815