Receiving and Carrying

"No one can tell," wrote an anonymous "American" at the beginning of the eighteenth century, "what is law and what is not in the plantations. Some hold that the law of England is chiefly to be respected. . . . others are of the opinion that the laws of the Colonies are to take the first place." ¹ The willingness of colonial Americans to register uncertainty about their law cautions us against generalizing about an early American law. No single legal institution dominated the colonies; no set of legal rules, or no particular ruling document, unified it. The ambiguity early Americans felt about their law stemmed from the disjunctions created by the affiliation of English legal traditions in the environment of the New World.

Historians frequently invoke the noun "reception" to describe the transplantation of English laws and institutions to American soil. The reception metaphor affirms our continuing fascination with the frontier's influence on American culture, a fascination that pervaded the writings of earlier lawyer-historians, who equated good law with technical complexity. They shuddered at its absence for much of the colonial era. For them, the wild American environment was little more than a land without law.

The frontier thesis and the reception metaphor deflect our attention from the colonists' shrewd legal sensibilities. Early Americans carried a body of legal ideas with them that they applied, as they would and could, in their new environment. The notion of "carrying" as opposed to "receiving" law properly emphasizes the active process by which informed persons made choices that were always important under often novel, and invariably difficult, circumstances. The frontier was less an impediment to the full reception of a preferred system of English law than a mold in which colonists in places as diverse as Massachusetts and Virginia went about making social choices.

The Setting of Early American Law

Growth of the population and of the land area occupied was the central fact of the colonial setting of American law. The white population in 1660 would barely have filled present-day Yankee Stadium. The native American population, decimated by disease and warfare, numbered only 25,000. While it steadily dwindled, the white population multipled. By 1690 the white population had tripled, and by 1760 it had quadrupled again to more than one million persons. Benjamin Franklin, in 1751.

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predicted that within a century "the greatest number of Englishmen will be on this side of the water." ² The black slave population, which barely existed in 1660, grew thereafter at a rate even faster than the white population. Aided by the slave trade and an escalating birthrate, the number of blacks in bondage in 1750 was almost 236,000, and their number nearly doubled again by 1770.

The colonies expanded in size as well as population. Initially, the early seventeenth-century settlements in Massachusetts, New York, and Virginia were little more than patches of coastal life clinging to a huge forested continent. By 1750, however, the colonies spread from the district of Maine to Georgia and inland from the Atlantic to the Appalachian Mountains. The spacious continent readily absorbed the expanding population, propelling economic activity and making labor a dear commodity.

Date: 2015-01-29; view: 894