1600-1754: Law and Justice: Overview

Transplantation. The European settlement of the New World, with its subjugation of the native peoples between 1492 and 1900, constitutes one of the largest migrations of peoples in human history. Europeans who transplanted to the New World brought with them their native cultures, and in North and South America they attempted to transplant as much of the old culture as suited their purposes, which were many and varied. They brought with them Old World ideas about family, labor, religion, government, and gender as well as notions about right and wrong.

New Societies. At every step of the way the colonists utilized European ideas about law to justify their actions and to regulate the new societies they created. They did not simply transpose English, French, Dutch, or Spanish laws to America; the situation in America was too different, too rough and new, for that to work. Instead they borrowed heavily when European ways supported what they wanted and improvised when they did not. Where there was much internal variety among colonies, such as in the English colonies, departures from European laws were common. In colonies more closely aligned to the mother country, like New Netherland, New France, and New Spain, there were fewer differences.

Conquest. All the European powers justified their claims to new territories and their rights of conquest over the native peoples they called Indians by appeals to the laws of conquest. French and Spanish law, drawing on ancient Roman law, justified the conquest of foreign peoples and lands. They had a harder time justifying the enslavement of Indians, and many in Spain concluded that it was illegal even though it continued in the New World. But conquer they did—the Spanish, French, Dutch, and English—and they extended their legal systems to the New World, always relying on them for justification. There was no international law in the colonial era, only the law of power. Disputes by different peoples were settled either through negotiation or through war. Sometimes different legal cultures would be blended, as in New York in the late 1600s when the English took the colony from the Dutch. Most of the time the law reflected who was in control.

Native Americans. The original inhabitants of North and South America had their own systems for regulating behavior and punishing wrongdoers, but these were not consistently respected by Europeans. The practice in New England was common. There the colonial government treated Indians as though they were under the same laws as the English and subject to the same penalties. This application of the laws of conquest had especially unfortunate consequences. What to English settlers might seem as an exercise of the principle of law and order could seem to nearby Indians as high-handed and dictatorial. Indian customs emphasized concepts such as honor and retribution, and the taking of captives in warfare was a common way of replacing relatives lost in battle. The English, however, did not recognize such principles as legally relevant, and the settlers saw the adoption of captives simply as kidnapping.

Adaptation. Once colonies were established, basic governmental and legal systems were instituted. These tended to be simple, and they varied not only according to country but also among the colonies founded by the same country. The English colonies along the Atlantic seaboard shared some tendencies. Most utilized the English common law only sparingly at first, finding the English system of courts too complex for their simpler needs. Most gradually developed slave codes, which had no corollary in English law. As they became more economically sophisticated and their legal needs changed, they made greater use of English law, especially in the 1700s.

Variations. Nevertheless, there were differences among the colonies. Most of New England was dominated by the Puritans, and the laws reflected their religious convictions. For example, they made blasphemy a crime punishable by death, though in actual practice they did not execute blasphemers. And it was in the Southern colonies that the most extensive slave codes developed because of their greater concentration of blacks.

Profession. Law was dominated by part-time or amateur lawyers and judges in the 1600s, but by the late 1700s there were many well-trained lawyers in the English colonies, especially in and around the major port cities and towns. They constituted a valuable resource. As early as 1700 the legal profession became noticeably more professional in the city of New York, and most of the colonies experienced the Anglicization of their legal systems. Despite misgivings in many colonies about lawyers, the increasing complexity of commerce and daily life made their presence ever more necessary. Americans found themselves explaining and defining their relationship to the mother country from the early 1600s onward. In times of political or imperial crisis, such as in the 1680s or the 1760s, legal knowledge could be invaluable. The debates in the 1760s and 1770s about rights, government, and authority, arguments that led to the American Revolution, occurred because by that time both lawyers and legal language were very much a part of the common culture.

Order and Abuse. Law served purposes other than maintaining order. As an expression of the values of a community it was used to maintain social arrangements thought by those in power to be appropriate. By the 1700s the institution of slavery was well grounded in, and well protected by, the legal system in all the English colonies. The Spanish used the law to sustain the enslavement of Indians and Africans. Although women often were better served by the legal system in America than they would have been in England, the law nonetheless expressed the dominant societal value that women should not enjoy rights equal to those of men. Children enjoyed even less protection. Some colonies used law to suppress the sentiments of those who dissented from prevailing religious beliefs: Puritans in Massachusetts persecuted Quakers in the 1650s, and Anglicans persecuted Baptists in Virginia in the 1750s. Most colonies attempted to regulate private morality through legislation and judicial enforcement.

Imperial Law. If law was an instrument of social control at the local level, it was an instrument of empire at a higher level. The Spanish, Dutch, French, and English possessions in America varied considerably, but their home countries each expected the colonies to serve them. England’s Parliament began enacting colonial trade regulations in the 1650s and continued to pass such laws throughout the colonial period. Such regulations bound Americans, especially those in port cities, more closely to the economic destiny of England. But when such regulations exceeded what Americans would tolerate, they could just as easily divide the two peoples. By the 1700s royal officials were common sights in port towns, agents of an imperial bureaucracy that imperfectly expressed the will of the king and Parliament for the colonies’ economic growth. Most Americans encountered imperial law infrequently, if ever. But those who did found it both a blessing and a curse, for while it benefited some economic enterprises, it could hurt others.

Local Restraints. Economic regulation was a fact of life locally, too. Craftsmen were not free to charge whatever they liked; disgruntled buyers could sue over high prices; and access to certain trades was legally restricted. Americans might have believed in liberty, but they also believed strongly in order, and one way of staving off economic changes was through legislation. This rarely worked in the long run but often succeeded in the short run.