Legislative Authority of the Assembly and the Town

The colonists developed their carried legal tradition most fully in the lawmaking institutions of colonywide and local government. The lower houses of the assembly, the town, and the county decisively shaped the substantive content of colonial law. Lawmaking, as a result, became the effective center of colonial politics.

Under English law the lower houses were subordinate, corporate councils called into session under the king's instructions to his governors or under a specific charter provision. The governor exercised something less than a whip hand. He was invariably forced to make significant concessions to the assembly merely to make government work. The steady accretion of legislative power in the colonies mirrored events in seventeenth-century England. There the Glorious Revolution of 1688 secured the sovereignty of Parliament, and American colonists thereafter insisted on the primacy of their own assemblies and the subordination of the governor to them. Colonial impertinence grew bolder in the eighteenth century. So too did threats against it. A pamphleteer in New York, supporting the British position, advised the colonial assembly "to drop those parliamentary airs and style about liberty and property, and keep within their sphere." ²⁵ When Massachusetts in 1733 appealed to the actions of the House of Commons as precedent for their own position, Parliament renounced it as a "high insult upon his Majesty's government." ²⁶ No matter, the assemblies repeatedly demonstrated their command of events on this side of the Atlantic.

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The assemblies became potent lawmaking institutions because somebody had to take responsibility for the mundane chores of day-to-day provincial life. Areas of legislative activity included the building of roads, ferries, and wharves; the formulation of land policy; the establishment of trade with the Indians; the regulation of immigration into the colony; settlement of boundary disputes; and the designation of fishing grounds. The assemblies necessarily gained control of the colonial purse strings through the exercise of taxing and spending powers. They also managed their internal affairs, including the freedom of their members to speak, to initiate legislation, and to fix qualifications of membership.

Strong colonial assemblies nourished a federal-like system of legal authority in which different levels of government exercised influence over particular matters. There was in reality a hierarchy of lawmaking authority. One of the chief responsibilities of the assemblies, for example, was that of establishing a loose but effective framework of legal constraints for the operation of towns.

Municipal corporations were the first colonial entities charged with promoting the public welfare. The Massachusetts Town Act of 1635 typified measures subsequently adopted in other colonies. It recognized the diversity of existing practices in the towns rather than attempting to dictate rights and privileges based on higher authority. Thus, the towns were to "dispose of their owne land, and woods," to "make such orders as may concerne the well ordering of their townes," to enforce these orders with bylaws establishing penalties not exceeding twenty shillings, and "to chuse their owne particulr officers, as constables, surveyors for highwayes, and the like." ²⁷ Regarding individual lives, this and other municipal incorporation acts left basic decisions about the role of the community to the towns.

Until about the 1740s, the single most important function of the incorporated town was to provide "the commercial community . . . the service of trade and industry." ²⁸ It established and regulated the marketplace. Like the English borough, colonial American towns actively intervened in the local economy. Among town-owned stalls strolled town officials employing town standards of weights and measures to gauge the produce sold by town-licensed butchers and town-admitted freemen.

The New England town meeting afforded a popular basis for the establishment of local law. Some historians claim that a ruling elite imposed rather than earned mutual accord; others argue that the spirit of consensus was real enough, and that influential town leaders simply settled troublesome issues through quiet agreement outside the meeting hall. Whatever its precise operation, the town meeting reinforced the consensual basis of early American law, not so much in a spirit of public policy formed through open government, as much as through a wish to avoid conflict. The New England settlers brought far more of their experience with them than has heretofore been recognized, and attitudes toward law and its implementation composed a significant part of their "English ways." Their inheritance included the notion, reinforced by the congregational scheme of church organization, that individuals ought to work in harmony. The bylaws of one Massachusetts town suggested as much. They expressed the wish that "no Intrested Disputes may make any breach of Union," so that the town could "advise and agree upon measures" and thereby obtain "Love and Unity [and] Peace." ²⁹

The town meeting invariably settled disputes involving groups rather than individuals. For example, the town of Rochester, Massachusetts in 1722 confronted the sticky issue of who would pay the taxes owed by Quakers who refused to support the

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local Congregational minister. The town decided that it would pay. Yet many of the decisions made in the meetings, while aimed at groups, required specific implementation, and that task fell to the selectmen elected by the freeholders of the town. The towns legislated, for example, to dispose of tramps and itinerants, to punish rowdy youths, to control loose hogs, and to establish the rights of fishermen in local waters. The selectmen, however, had the job of actually expelling strangers and securing roving swine.

On the eve of the American Revolution economic change, population growth, religious ferment, and imperial intervention placed these "peaceable kingdoms" under serious strain. As ripples of economic activity widened in the eighteenth century, social conflict spread to individuals and groups in different towns, even colonies. The conscious effort of the English authorities to enhance the common law system also pushed disputants in New England to seek judicially enforceable legal remedies. The town remained a source of local governmental authority through its rule-making power, but as an institution of formal and informal dispute resolution, it became less important. Beginning in the 1760s, growing numbers of disputes between persons from different towns crowded the county and session court dockets, indicating the mounting attention given to judicial resolution of social controversies. The courts laid claim to new authority at the expense of the towns.

With a few exceptions-- Williamsburg, for example--towns in the Chesapeake and southern colonies were pale images of their counterparts in New England and the middle colonies. The county rather than the town fostered commercial activity and regulated the local marketplace. The pattern of scattered settlement over a large area made the county and its court the center of local legislative activity. And because the leadership from the tobacco and rice planting social elite was not interested in setting up villages with churches as the focus of life, society in Virginia, Maryland, and the Carolinas spread out into tobacco plantations of various sizes. The dispersion of legal institutions followed the dispersion of society.

Date: 2015-01-29; view: 815