Beginnings of American Legal Institutions

The colonists held to a unitary view of legal institutions and their responsibilities. They did not subscribe to the modern notion of a functional separation of powers in government nor did they believe in sharply drawn lines in the administration of the law. Through two centuries, the colonists indeed developed more complex, formal, and hierarchical legal institutions, but even at the end of the era they were less differentiated than they became in the nineteenth and twentieth centuries. The quest for economic self-reliance, rooted in the practice of capitalism, and the tightening grip of imperial control, generated by the empire's greater costs, fueled the growing complexity of legal institutions.

The Courts

Seventeenth-century Americans viewed lawmaking and judging as synonymous activities. John Winthrop, for example, repeatedly referred to the "High Court of Parliament," a position echoed in England by Sir Thomas Smith in De Republica Anglorum. ¹⁰ There were, of course, courts lesser than Parliament. Lord Edward Coke, the greatest writer on the common law in the seventeenth century, counted more than one hundred courts, ranging from the powerful royal courts that administered the complex body of common law rules to local courts, leet and baron, that depended as much, if not more, on custom as law. The colonists' modest social origins (coupled with the

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absence of a trained bench and bar during the seventeenth century) meant that they were most familiar with the local courts. The colonists replicated what they knew, and what they knew best was local not royal judicial structure. Throughout they gave Old World institutions a New World character.

Every colony developed a simple layered system of courts. At the top were the colonial legislatures, whose members regarded themselves, sometimes in alliance with the governor, as the highest court in their jurisdiction. Unlike Parliament, the colonial legislatures occasionally took cases in original jurisdiction. The Virginia legislature in 1619 tried Captain Henry Spelman for illegal correspondence with the Indians and required him to serve a term of seven years as the governor's interpreter as punishment. The General Court of Massachusetts, which was that colony's lawmaking body, took an expansive view of its judicial power. For example, it tried Dr. Robert Child and his associates for heresy (adhering to unorthodox religious views) and sedition (defaming a political official). But the legislatures were most important as courts of appeal, especially in criminal proceedings. Even in Virginia and Maryland, where the king granted authority to the proprietors or governors, the legislators made themselves into the forums of last legal resort. The same bodies that made the law often decided the fate of persons accused of breaking it.

A layer of superior courts below the legislatures functioned as courts of assize and original jurisdiction in some colonies. The authority for these courts might be a charter, a voluntary association, or royal instructions. Their composition also varied. In the Chesapeake colonies, superior courts consisted of an appointed governor and council, and they were called the General or Quarter Court in Virginia and the Provincial Court in Maryland. In New England, the governor and the assistants made up the superior court, and they were elected either by freemen or the legislature. In Massachusetts these courts were styled Assistants Courts, in Rhode Island the Court of Tryals, in Connecticut the Particular Court, and in New Haven the Court of Magistrates.

Although generalizations are difficult, these superior courts shared two features. First, civil matters constituted most of their dockets, but they also exercised original jurisdiction over capital criminal cases and appellate jurisdiction from lower courts. Second, the politics that swirled through each colony buffeted these courts. In Maryland, for example, the Provincial Court was a battleground between the Calverts and their opponents, and charges of sedition and treason fill the court's records. In Massachusetts, a clique of the self-proclaimed elect dominated the Assistants Court through most of the seventeenth century, anxiously superintending the colony's moral condition.

The local courts made up the third and most important layer of judicial authority. In Massachusetts and New York in the mid-seventeenth century the quarter session courts (so called because they met in session every three months or so) began to appear. In the Chesapeake region similar institutions were known originally simply as county courts, although Maryland briefly experimented with a full-blown scheme of manorial courts. The individuals on these courts were variously termed commissioners, councilors, magistrates, or justices of the peace. They numbered from three ( Massachusetts) to fifteen ( Virginia), and in every colony the social elite controlled them. Their duties included legislative as well as judicial responsibilities. These courts, for example, decreed the level of taxation, oversaw its collection, stood in

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judgment of those persons who failed to pay, supervised road building, licensed taverns and inns, granted poor relief, and tried criminal offenders.

Local courts had social and symbolic as well as legal functions. Court day brought large numbers of persons to town. It was an opportunity to discuss politics, to conduct business, and to socialize. Court day fostered continuity in the lives of colonial Americans through its palpable demonstration of the existence of legal authority. By the eve of the Revolution, court days were often more important for the political rhetoric outside the courtroom than for the legal proceedings inside.

From the establishment of the colonies to the Revolution, the legal tenor of these courts gradually changed. Initially, lay judges administered an informal and often discretionary form of justice. These local courts were not duplications of a specific English model, but "crude imitation[s] of inaccurately remembered things." ¹¹ The "things" inaccurately remembered were local laws and customs spiced, in some colonies, with religious fervor. There was little of the technical precision insisted on in the royal courts of the mother country, which prescribed rigid verbal formulas for different descriptions of wrongs and requests for remedies. Rather, in keeping with the law reform impulse of seventeenth-century England, local courts administered justice based more on the substance of the case than the way in which it was presented. Sentencing patterns suggest the discretionary role of these courts as agencies of social control and as safety valves for individuals in society. In New York, for example, a woman suspected of theft was ordered out of the county, while another thief was ordered to be given twenty-one lashes, and yet a third was "remitted to the correction of his father." ¹²

By the end of the seventeenth century these courts became more formal. The Essex County, Massachusetts court typified this process. Until the 1680s, that court had taken an informal and creative approach to law. But two developments prompted change. First, as Essex filled up with settlers and as commerce expanded, land titles came under increasing scrutiny. Many were found wanting. The county court, once an institution most attuned to maintaining local consensus, now found itself cast as a neutral agent, an honest broker, expected to resolve social conflict through the formal legal processes. At the same time, the restored Stuart monarchy in England wished to knit the colonists more fully into the fabric of the empire, and they proposed to do so by making colonial law confrom to English practices. To this end, the Crown instituted in 1691 the short-lived Dominion of New England, which reorganized county government and brought new members to the Essex County bench. Although the Dominion subsequently collapsed, the reforms it brought persisted.

Both developments introduced a previously unheard of degree of formality. Thus, in the late 1680s there appeared for the first time the use of the fictitious parties of John Doe and Richard Roe in cases involving ejectment from lands. The Essex court also began to enforce technical requirements of procedure, leading to the dismissal of actions and undermining the traditional role of informal community norms on the actions of the judges. Litigation in the late 1690s declined sharply because people balked at having their cases argued according to unfamiliar common law procedures. By the early eighteenth century, however, a trained bar offered its services and litigation in Essex exploded beyond seventeenth-century levels. The same pattern developed in nearby Connecticut, where once-neighborly modes of dispute settlement yielded

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before an increasingly formal legal system that treated neighbors and strangers alike. ¹³ As colonies became provinces in the eighteenth century, and as economic activity extended in scope beyond local boundaries, the courts became both more active and more formal. Formal institutional roles first flowed from and then abetted economic and demographic growth.

Settlers in the Chesapeake and southern colonies experienced much the same with local courts as did their New England and middle colonies counterparts. Still, differences appeared. The somewhat sharper division of social status in these colonies gave the gentry, which had by experience greater exposure to the technical forms of the common law than did the middle class, a firm hold on the county courts. The law reform movement in seventeenth-century England had less influence in these colonies, and the courts had greater respect for technical pleading. But the differences existed on the margins; county court justice in seventeenth-century Virginia could be as arbitrary as that in Plymouth plantation. Thus, the Virginia House of Burgesses in 1658 passed a statute urging the courts to render judgment "according as the right of the cause and the matter in lawe shall appeare unto them, without any regard of any imperfection, default or want of forme in any writt, returne, plaint or proces." ¹⁴ By century's end, however, the same economic and demographic forces that promoted a more formal scheme of justice in Essex County appeared in Virginia and Maryland.

The dispersed landholdings of the Chesapeake and southern colonies militated against efficient justice. Judges presided over scattered populations. They were notorious for their reluctance to leave the safe confines of home. South Carolina, for example, for the first forty years of its existence had only one court that met in Charles Town, creating hardships for backcountry residents. It was not until the Regulator Movement of the 1760s, which was brought about in large part by the failure of local government outside of the low country, that judicial authority became truly province- wide.

Even when the judges did venture forth, they sometimes exercised insufficient authority in problematic ways. Tobacco prices provide a good example. Planters with vast stretches of land (often the county court officials expected to implement laws setting the price of tobacco) went their own way and cultivated excessive acreage. At the end of the seventeenth century, the planters' disdain of the rule of law brought about a serious crisis as small farmers, who wanted to improve their economic position by reducing the amount of tobacco in production, engaged in "plant cutting" riots. A worried local magistry, anxious for their own prerogatives, retreated to the certainty of formalized common law. In turn, the legal profession, itself made up of the sons of planters, rose to serve the law's increasing technicality.

Date: 2015-01-29; view: 762