The Church

The law of God and the Bible were important sources of colonial law. Early Americans identified wrongdoing with sin, and they looked to their churches as institutions of conflict resolution and social control. The clergy enjoyed a prominent role both as a source of social authority in its own right and as a voice in civil affairs. The congregation and town government overlapped in New England; the vestry and county government coincided in the Chesapeake. Positive secular law had always to be conscious of, if not consonant with, moral values supported by religious authority. Even the Quakers in Pennsylvania, with their loosely structured religious units, anticipated that the church would enhance--but not dictate--secular authority. Yet nowhere did the church run civil government, and the notion of separation of church and state itself became a major unifying tenet in the development of American public life.

Still, churches were significantly less important as legal institutions than in England. The Anglican Church never fully established itself (i.e., became an official state religion) in the New World and, as a result, ecclesiastical courts never appeared. These courts in England were powerful engines of moral authority, treating crimes such as drunkenness, fornication, buggery (sexual perversion), and adultery. The civil courts

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in America took responsibility for these matters. Individual churches indeed punished misconduct, but their authority ran only to the members of their congregations and parishes. The churches did not distinguish between civil and criminal acts, but instead attempted to foster a sense of Christian forgiveness and consensus. Even where the church was strong, economic growth imported divisions into local communities that resisted resolution by local nonlegal institutions. As formal legal institutions grew in authority, the significance of arbitration and church disciplinary procedures waned. Religious ideals supplied a moral tone to the operation of criminal law and business relationships, but the churches proved incapable of resolving disputes among nonmembers. Finally, religious pluralism precluded any one church from dominating the character of colonial legal culture. In order to enhance settlement on its western frontier, Virginia, for example, had to waive provisions of a law that required non-Anglicans to pay a tax to maintain the parish clergy.

The Institutional Legacy

By the time of the American Revolution, the colonists had forged a distinctive set of legal institutions to serve colonial conditions. Over the course of almost two centuries they became increasingly complex and formal, and they also became more powerful. Law became less communal, in part, because the community itself changed, with law becoming more general and the community more particular. ³⁰ From these institutions in each colony emerged a body of rules that, while owing something to remembered English ways, also reflected the circumstances of the New World. The resulting ambiguity in law troubled colonists and English imperial authorities alike.

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2
Law, Society, and Economy in Colonial America

Colonial Law and Social Control

The crude provinces that in time formed the United States were elements of a greater historical context. Protestant toleration, nationalism, and capitalism shaped the English society and economy. These same forces affected the colonies, but with them the situation was different: they had no feudal past. The colonists matured their legal tradition under this unique circumstance. The substantive body of law that poured forth from early American legal institutions promoted both a more open society and one in which individuals could experience greater economic opportunity than existed in the mother country. Yet among the early settlers were losers as well as winners, and decisions about how to treat the poor, punish the deviant, and enforce economic obligations touched some persons more than others. The ambiguity in early American law extended to its social and distributive consequences, not just to differing notions of law among the colonies and with the mother country.

Dependency

Colonial Americans accepted poverty as a natural, expected condition of frontier life. They did not, however, so willingly embrace its social consequences. The poor were an economic drain on the community, an unwanted example of sinfulness, and, in the eighteenth century, a potential criminal threat.

We shall never know exactly the extent of colonial poverty. What we do know is that, despite the strong middle-class character of early North America, the poor constituted an identifiable class. For example, James Glen, governor of South Carolina in the mid-eighteenth century, concluded that, while his province had "plenty of the

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good things of life," it also included--among a population of 30,000--about 5000 white persons who only had a "bare subsistence." ¹ Subsistence and poverty, of course, are two different things. Josiah Quincy of Massachusetts offered a more biting assessment of class and poverty in South Carolina; he found that the colony divided into "opulent and lordly planters, poor and spiritless peasants and vile slaves." ² Even strongly middle-class New England was conscious of its poor. Religious activists thought of Boston as a kind of Babylon, teeming with vice and poverty.

By the eighteenth century, in all the colonies a new kind of poor had emerged: the wandering or "strolling poor," consisting of the unskilled, the widowed, and the aged. Some of these people were not truly indigent, but instead were itinerant male laborers constantly searching for work, having been displaced from their hometowns. Establishing the residency of these individuals confounded leaders of different towns, each of whom sought to prove that responsibility for a transient belonged elsewhere. The courts of New England and the middle colonies became the forums in which these disputes were settled, and a decline in the traditional informal basis of social cohesion followed.

Sentiments of class and humanity influenced the legal response to the poor. Every colony enacted some sort of "poor law" based on the Elizabethan model. Colonial legislatures prescribed the terms of relief for the poor, but the responsibility for implementation fell on local communities. Because the towns and counties had to levy taxes to fill the relief coffers, their leaders decisively controlled the treatment of the poor. They expected families and neighbors to take care of their own and, when they did not, the overseers of the poor (a committee appointed by the county court or the town selectmen) sought court action. In 1752, for example, a sessions court in Massachusetts ordered the relatives of two "aged" women to care for them. ³ In seventeenth- century New England the family was held accountable for the well-being of its members and therefore rescued the deserving local poor from their fate.

Family and neighbors were also important in the Chesapeake and southern colonies, but demography and geography worked against their effectiveness. The scarcity of women in the seventeenth century, the low life expectancy of males, and the remoteness of scattered settlements over large areas prompted a more active role for judicial authority. The most significant development from these circumstances was the appearance of orphans' courts. These institutions attempted to prevent poverty before it began by binding children without families into apprenticeships.

The transient poor stirred great anxiety because they threatened the bonds of community. All of the colonies adopted the practice of "warning out," which was part of the carried legal tradition brought by the settlers from life in the English boroughs. Persons who could not prove their self-sufficiency, by either posting a bond or securing a community sponsor, were ordered by the selectmen or overseers of the poor to leave, usually within three days. In some instances communities attempted to deal with transients and idlers--the so-called undeserving poor--by shaming them. A Pennsylvania statute of 1718, for example, prescribed that the habitually poor were to wear a "large Roman 'P'" on their shoulder. ⁴ The stocks also became a favored punishment.

But by the end of the eighteenth century, the legal status of the poor was in transition from the earlier local and familial solutions toward a state-sponsored, institutional mode of action. The Massachusetts General Court in 1794, for example, enacted a new Poor Law that formally replaced the practice of warning out with routinized

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procedures for the removal of the poor and instructions to each town to provide care and immediate relief for up to three months without regard to an indigent's residence.

Early Americans generally rejected what was one of the most striking features of the Elizabethan Poor Laws: imprisonment for debt. The colonists rearranged their legal tradition to fit New World exigencies, and their actions caution us against drawing a fine line between colonial experience and the practices of the new nation. In a labor- scarce economy, the work force was an important commodity that could be tapped for the benefit of the community. By the middle of the eighteenth century the leaders of New England and the middle colonies, while still committed to treating the poor on the basis of family and neighborhood assistance, forged a modest institutional solution to the seemingly ever-increasing problem of the poor: the workhouse. Pennsylvania law makers, for example, began to specify periods of incarceration for those persons unable to pay their debts. Their reasons for doing so, however, were altogether different from those of the English. Under Quaker influence, the Pennsylvania Assembly concluded that putting the poor to work at hard labor would teach them the discipline necessary to become productive future citizens while providing the community with much-needed labor. The workhouse subsequently provided the model for the American penitentiary.

Date: 2015-01-29; view: 847