Pre-1600: Government and Law: Overview

Government. The history of government in North America begins with the coming together of two drastically different political traditions. The Europeans who first came to the Western Hemisphere were the agents of centralized monarchies that regulated the behavior of hundreds of thousands of national citizens. By the time of Christopher Columbus the governments of Spain, England, Holland, and France were powerful enough to tax, regulate, and defend the people living within the boundaries of thousands of square miles of national domain. In the Americas, European explorers and colonists encountered thousands of different Native American communities that ordered their social and political affairs in a manner that was quite different from the kings, parliaments, and courts of Europe. In fact, many anthropologists object to the use of the word “government” to describe the way that Indians regulated their societies. Government evokes images of judges in robes, politicians debating in grand halls, and kings and queens sitting on elevated thrones of absolute power. These conceptions, however, were not representative of Native American government in the period before 1600. Perhaps then it is more appropriate to think of native government in terms of patterns and regulations of behavior. An American anthropologist of the twentieth century named E. Adamson Hoebel described Native American methods of behavioral regulation as “law-ways” to demonstrate that they essentially met the same objectives as western governments but were at the same time quite distinct from the courts and laws and governments of Europe. Rather than being produced by a coercive, centralized government and imposed on the people of the society from above, Indian law-ways emerged organically in response to the needs of the community. Although Native American cultures were not literate before the European discovery, their communities maintained social mechanisms that served the same purpose as a written code of law. Individuals always knew the boundaries of appropriate or acceptable behavior in native communities, and each Indian society maintained practices that provided for order and the common good.

Religion. While the European nations were in the process of differentiating or separating their religious, social, and political institutions from each other in the centuries before their explorations of America, the Native American peoples continued to maintain almost completely synergetic societies during this time. In other words, the legal and political institutions of Indian communities were indivisibly integrated with their spiritual beliefs and their kinship networks. These cultures harbored no concept of a separation between religion and government. Religious prescriptions and family relationships, not governments, determined most legal rights and duties for Native Americans. Therefore it is impossible to understand how Native American government worked without taking into account the intertwining nature of politics, kinship, and religion in their societies. Although the substantive religious beliefs of Native Americans varied widely from culture to culture, there were some common characteristics among Indian groups that influenced the way that they ordered their communities. Most native religions were grounded on the belief that all beings in the universe hold spiritual power. Contrary to European Judeo-Christians, Indians did not believe that God had given them dominion over the earth. Instead Native Americans believed they were part of a dynamic, spiritual world. Indians believed that the forces of the natural world had to be recognized and respected and that it was incumbent on humans to help maintain the universe in a state of balance. An important process that promoted balance was reciprocity, the idea that an individual act calls for an appropriate and equivalent response. Many native societies practiced extensive gift-giving rituals that were intended to promote social balance and interdependence between peoples holding different levels of power and prestige. At the same time Indians felt they had a responsibility to preserve a reciprocal relationship with nature. This worldview dissuaded natives from thinking of land as something that could be owned and exploited by one person. Native American religion also stressed the importance of access to spiritual power. The council meetings of native cultures were marked by ceremonial rituals that were intended to provide individuals with the ability to tap into the spiritual power that would lead them to decisions. Since there was no true separation between government and religion, spiritual considerations often guided or influenced political decisions. Consequently, priests such as shamans and medicine men played an important role in native governments. These spiritual leaders healed the sick, interpreted dreams and natural signs, and were the conduit between the community and the spirit world. Because of their spiritual power, the opinions of a community’s religious leaders carried considerable weight in many native councils.

The Clan. The family and the clan were the institutions primarily responsible for maintaining order and security in Native American communities. A clan is a group of kin who claim descent from a common ancestor. Clan members often believed that the original ancestor possessed the characteristics of an animal that was indigenous to their culture’s environment. For example, the bear clan and the wolf clan were common clan names throughout North America. Depending on the society, clan membership passed down from the mother (matrilineal descent) or the father (patrilineal descent) to the children. Some groups recognized bilateral membership. In other words, children in a bilateral society could claim membership in the clans of their mother and their father. Membership in a clan provided individuals with important rights, obligated them to specific duties, and ordered their relationships with other people. For example, clan membership determined rights to land use, identified who an individual could or could not have sexual relations with, and provided mechanisms such as the law of blood revenge that inhibited violent behavior. The clan also played a role in providing judicial, political, and military leadership for a native community. For instance, clan leaders or elders often mediated quarrels between family members. In many societies the elders of the clan were also the most influential members of village and tribal councils. In short, the political structures of Native Americans were clearly founded upon kinship relations. Political leadership or government beyond the clan network only emerged when circumstances required unrelated bands to cooperate with each other for food production and for extensive public projects such as irrigation systems, ceremonial earthworks, and defensive structures.

Consensus. Although there were societies with leaders of paramount power, most native societies were basically egalitarian. An egalitarian society is one in which most or all adults have an equal voice in community decisions. However, these groups did not vote or decide questions on the basis of majority rule. Instead decisions in these societies emerged through consensus after long consultation and considerable oratory and debate. Individuals in Indian societies learned to conform to the social mores and to cooperate with other members of their communities at an early age. They learned to be reflective, to respect the opinions of the others, and to abide by the consensual decisions of their elders and council. Among some peoples individual leaders emerged to take a more influential role than others. Depending on the culture, leaders achieved their position by their skill in oratory, wisdom in judgment, achievements in war, facility in administration, or generosity. Leaders, however, generally did not have the power to coerce other members of the community to follow their will. Instead they moved people to action by persuasion and worked to form agreement and consensus in the community. When leaders lost the ability to form or maintain consensus in the community, their communities replaced them with another. Those who disagreed with the consensus were not obligated to follow the decisions of their councils. Occasionally dissenters from an important community decision departed the village or town and established new bands or villages. In some cases Europeans who dealt with native peoples were often confused by this practice. They often believed that Indians had difficulty reaching decisions or were duplicitous. For example, representatives of a European nation sometimes made peace with a native people and then suffered an attack from what they thought to be the same group. In reality what had happened was that a dissident minority of the native society had refused to accept a decision of peace, left the council, and instigated its own war on the Europeans. Disturbances such as these encouraged many native peoples in the seventeenth and eighteenth centuries to begin centralizing their own governments so that they could respond more effectively to the European invasion.

The European State. By 1600 agents of Spain, France, and England had all visited parts of the Atlantic coast of North America. While France and England did not establish a lasting settlement on the American mainland until the early decades of the seventeenth century, Spain had by that time constructed a vast empire in Mexico and Central and South America and had explored and established missions, presidios, and plantations throughout the southern third of the present-day United States. These three European powers had only developed in the few centuries before their American expeditions. Their emergence as imperialistic nation-states was the culmination of a long period of political and legal evolution that began in the Middle Ages. In the ninth century the people of Europe lived under the authority of the Christian church, the empire of Charlemagne, and various local kings, princes, and chieftains. After the death of Charlemagne in 814 centralized government collapsed, and feudalism became the primary system of legal and political order in western Europe. Feudalism was a private form of social and political organization based on the ownership of land. During the early stages of the development of the feudal structure the kings of Europe rewarded favored chieftains with vast parcels of land in appreciation for their military leadership. This grant was called a fief, and it gave the chieftain noble status. He also obtained a feudal title. In exchange for the fief these overlords promised fealty, or fidelity, to the king. Effectively this meant that the overlords would provide men and arms to fight the king’s wars. With this agreement the overlord became what was called a vassal of the king. The overlords divided up their own estates into smaller tracts and gave possession of them to their own set of vassals in exchange for certain services and fees. These tenants also had the power to divide up their land and enter into feudal arrangements with subordinate lords. Local men agreed to this relationship because it was the only legal way to acquire an estate in land. In exchange for the land these local lords offered their allegiance, their service, and their military support. They also safeguarded their lord’s family, sat in judgment of their peer vassals, and offered financial assistance and advice to their overlord. Consequently, a powerful overlord could expect several vassal lords to provide him with soldiers for his army. In sum the feudal system was a vast and complicated pyramid of contractual relationships between people of varying degrees of wealth, influence, and power. This hierarchy was never implemented by a king or legislature. Instead it developed over time through contracts of necessity between families of differing levels of economic and military power.

The Manor. Under feudalism local political and legal authority had collapsed into the hands of hundreds of landholding lords. At the lowest levels of feudalism lived the lord on his manor or estate. The right to this land passed down the hereditary line from the father to his eldest son. This system of succession to land is called primogeniture. The local lord held authority over the landless tenants who lived on the farms and in the villages on his estate. These people were called peasants or serfs. They were legally bound to the land of their lord and could only leave with his permission. Serfs were required to work their lords’ land for a certain number of days each week and were obligated to provide him with a portion of their crop as rent. In exchange the lord ostensibly provided protection, a system of justice, a common mill, and a church for the residents of his estate. The manor was thus a self-sustaining community that supported the status and welfare of the lord. On some manors the lord appointed special officers from the peasantry to protect his property. For example, some lords maintained foresters who were responsible for limiting the amount of wood that the peasants could cut. The foresters also punished poachers who hunted on the lord’s land without his permission. These foresters were the forerunners of local law enforcement officers. Feudalism provided a system of law and order for the manor in a time when coercive state authority was absent in Europe. At the apex of the feudal hierarchy sat the hereditary king.

The Feudal King. The kings of western Europe continued to claim dominion over their lands during the Middle Ages; however, their powers were limited. Although the kings of Europe claimed their authority as the supreme overlords of their realms, they were dependent on their vassals for their military and financial support. The king held direct authority only over his immediate vassals and could only claim jurisdiction over the people of his realm by virtue of this relationship. Feudal monarchs did not have the support of national courts and legislatures. They did not possess a coercive system of national taxation beyond the feudal scheme of rents and fees. The monarchs of Europe were also unable to raise national armies except through the feudal system. The king did hold the supreme title to the land of his nation; and all of his vassals, and all of their vassals, claimed possession of their land through the king. The king expected his underlords to pay him fees from the income earned on his lands to provide for the expenses of government. He also demanded military service from his underlords, who in turn provided their own vassals and subvassals as soldiers and knights in the king’s army. While the king could not issue laws that bound all of the people of the nation, he could order his vassals to require their subjects to abide by his edicts. Moreover, the king did not hold legal jurisdiction over his country as we now understand it. Instead he held the legal power to decide disputes between his immediate underlords. The power of government held by the king was thus based on the feudal contract. As a result the crown heads of Europe were constantly in competition and conflict with their vassals for control of their kingdom. The king’s vassals often challenged his authority if he demonstrated weakness or violated his feudal obligations. If the monarch violated these obligations, his vassals had a legal right to demand that he fulfill his duties. If the king failed to do so, his underlords could ask him to release them from the arrangement. Overall the European kings during the age of feudalism held extremely limited powers. Between the tenth and sixteenth centuries, however, the monarchs of western Europe slowly reacquired the authority that they had surrendered under the feudal system. By 1600 several of the royal families of Europe had vanquished the competing power of the nobility and were on their way to acquiring absolute power over their kingdoms.

Church and State. During the Middle Ages, the Pope, the head of the Roman Catholic Church, held powerful influence over the governments of Europe. Pope Gregory VII, who governed the church from 1073 to 1085, had dreamed of a Christian world government in which the papacy controlled the crown heads of Europe. For centuries the Church attempted to realize this dream. The popes of Rome intervened in European internal affairs, mediated disputes between nations, and apportioned newly discovered lands among the Catholic monarchs of Europe. Many of the rulers of Europe, such as the Holy Roman Emperor Henry IV, who ruled from 1056 to 1106, bridled at the Church’s efforts to control secular as well as spiritual affairs. Henry co-opted the Pope’s right to invest the bishops of the Church with their symbols of office and thus challenged the Holy See’s authority to control the clergy in the empire. For that act Pope Gregory excommunicated Henry from the Church. The threat of excommunication, or expulsion from the Church, persuaded many European rulers to abide by the wishes of the Pope. Ultimately, though, the Church’s influence over the European governments waned dramatically in the fourteenth and fifteenth centuries. The corrupt practices of a series of popes and bishops tarnished the Church’s position as the spiritual and moral authority of Europe. In addition, many of the monarchs of Europe followed Henry’s precedent and repudiated the Church’s demands for a say in the secular affairs of their governments. England, for example, refused to accept Pope Alexander’s division of the Western Hemisphere between the Catholic nations of Spain and Portugal in 1493. The English nationalist Richard Hakluyt declared that the Pope did not have the right to cede undiscovered lands to whomever he liked. Finally, the Protestant Reformation ended the Church’s monopoly over the European spiritual world. In 1517 a German professor of theology named Martin Luther posted a devastating critique of the Church on the door of a sanctuary in Wittenberg, Germany. The Ninety-five Theses, as his statement was called, initiated a general religious, social, and political upheaval in Europe. Luther criticized the trappings of the Church and called for an end to the dispensation of indulgences, a practice in which officials of the Church offered forgiveness for sins in exchange for cash payments. More importantly Luther set forth a radical new interpretation of Christianity that challenged the existing dogma of Catholicism. Among other things, he argued that the Pope in Rome did not have the authority to define appropriate beliefs for Christians, that all individuals should be able to read the Bible and interpret it according to their own conscience, and that Christians did not acquire grace or eternal life from their works but from their faith. These assertions had a powerful impact on the relationship between Christianity and government in Europe. Luther urged the monarchs of Europe to seize control of the faith in their countries. He wrote that people owed their spiritual allegiance to God but that they should devote all of their worldly interests to their king. Some of the rulers followed Luther’s directive and extended their power over the often troublesome clergy in their kingdoms. Another Protestant wave swept through much of Europe when John Calvin published his Institutes of the Christian Religion in 1536. Calvin expanded upon Luther’s ideas on several theological issues. In particular Calvin preached that there were a certain elect group of people who were predestined by God to enter the kingdom of heaven. No act or degree of faith could change one’s destiny if God had not created the individual as one of the elect. Calvin also differed with Luther on the proper relationship between the church and the state. While Luther had contended that the church should be subordinate to the state on secular matters, Calvin preached that Christians should seize control of their governments and create Christian theocracies. Calvin created such a community in Geneva, Switzerland. In 1620 English Puritans established a Calvinist theocracy in America at Plymouth, Massachusetts. The emergence of Luther’s Protestantism and Calvinism, and the concomitant repudiation of the Catholic Church’s authority, opened up the Americas to colonization by England and Holland in the seventeenth century.

The City and Commercial Law. Another dramatic process that influenced the nature of government in America was the decline of feudalism and the rise of the absolute monarch. An important intermediate step in this transition was the rise of municipal government and the development of a common commercial law. Throughout medieval Europe merchants and artisans living in towns and villages chafed at the restrictions imposed by the feudal lords. Unlike the peasant farmers on the manors, they were able to retain much of the wealth they produced. Accordingly they wanted to have a greater voice in the regulation of their businesses. Consequently they moved to construct their own legal and political institutions so that they could free themselves from the overbearing restraints and fees of feudalism. The governments of these emerging cities were typically managed by a council of merchants and administered by one or more magistrates. The magistrates, chosen by the citizens of the community, were responsible for collecting taxes and tolls, building public-works projects, and providing for the city’s defense. These governments also developed their own codes of commercial dealing. They devised laws that regulated borrowing and lending and the sale and transfer of goods. These regulations limited individual rights for the good of the citizenry and the local economy. For example, they mandated that farmers only sell their produce in the town market, required artisans and craftsmen to ply their trades within the city walls, and implemented protective tariffs on goods brought into the city from other places. Artisans in many towns also established guilds, associations of craftsmen that regulated the activities of their members and protected them from competition from other towns. The guilds oversaw production practices, preserved the quality of the local product, regulated prices and wages, and provided a system of instruction for apprentices. In short the governments of the cities actively worked to protect local producers from economic competition from other towns. The nation-states of early modern Europe later emulated this practice on a much broader scale. Over time the laws of commerce became quite standardized as traveling merchants spread the knowledge of their effectiveness in promoting economic growth across the continent. Early modern cities also established special merchant courts that applied the commercial law. These courts provided speedy trials for traveling commercialists and ensured that the property rights of local producers were being protected.

The Free City. Most of the cities of Europe remained nominally subject to the authority of the feudal kings; however, around the twelfth century several cities established themselves as free cities or independent republics. Cities such as Venice, Florence, Milan, Bruges, and Ghent became the beneficiaries of the Renaissance economic expansion and developed into formidable commercial powers. The governments of these cities offered personal liberty to their residents. The peasants of the manor often abandoned the estates of their lord and their feudal obligations for the freedom and economic opportunity offered by the free cities. In other areas of Europe towns joined together into formal leagues or confederations to deal with problems of security, piracy, and robbery. The political independence of the free cities and leagues and their economic prosperity helped to bring on the decline of feudalism. The feudal structure was not capable of administering and allocating the new sources of wealth that were coming in from around the world during the Renaissance. These pressures, and the reinvigoration of the monarchies, finally destroyed the feudal system and left in its place modern, capitalistic nation-states.

Rise of the Nation-State. The political and economic power that flowed from the manors to the cities also had the effect of strengthening the monarchies of Europe against the feudal nobility. Since the cities were producing considerable wealth, the crown heads of Europe could tax the cities and their residents and avoid appealing to the nobility for revenue. In addition the merchant class preferred a strong, central government that could provide order and security for commerce throughout the nation. Therefore, the cities and the commercial classes willingly turned to the monarchy for that protection. As part of this process many post-Renaissance cities relinquished regulatory control of manufacturing and commerce to the national governments. In other cases the kings of Europe simply seized control of the cities within their realm. The monarchs of Europe also slowly acquired the allegiance of a national populace tired of overbearing and warring feudal lords. A powerful king or queen offered the promise of national law and order, and as a general rule, the people preferred the authority of the Crown over that of the nobility. To facilitate the expansion of their power, the monarchs of Europe sent out administrative superintendents and legal officers to exert their authority and presence throughout the country. These agents expanded the royal judicial system throughout the land and enforced the nation’s law over the people of their kingdoms. As the commercial economy became more important in early modern Europe, rulers also created national armies and navies to protect their kingdoms and their economic interests. The professionalization of the military required enormous outlays of capital, and the monarchs of the continent developed innovative taxes to increase their revenues. In particular monarchs expanded their tax base by transforming feudal duties into personal tax obligations. For example, under the feudal system an underlord owed a period of military service each year to his overlord. The English crown transformed this obligation into a payment called a scutage, a fee that nobles could pay to avoid military service. These new taxes dramatically enhanced a king’s treasury and his authority over the nation. In this cycle of empowerment and taxation the ruler also used the new revenues to expand into new geographical areas. Other factors beyond the strengthening of the monarchy helped generate the large, centralized nation-states of western Europe. The development of a national culture helped bring the people of a nation together. The invention of the printing press helped standardize a nation’s language. Improved roads and expanding commerce brought the people of a country into closer communication, and the great wars of the fourteenth and fifteenth centuries promoted a nationalistic spirit among the citizens of warring nations. By the end of the fifteenth century the emerging national powers of Europe were prepared to exert their authority beyond their borders.

Mercantilism. These European governments followed an economic policy called mercantilism. Under the theory of mercantilism, economic philosophers held that a finite amount of wealth existed in the world and that a nation achieved power in relation to its rivals by building up its supply of gold and silver bullion. In order to do this a nation ideally produced a favorable balance of trade and made its economy self-sufficient. To obtain this mineral wealth and independence, proponents of mercantilism argued that a nation should establish overseas colonies that would provide the nation with valuable natural resources. In the case of Spain, it sought to draw as much gold and silver out of the Western Hemisphere as possible. At the same time mercantilists also recommended that a nation use its colonies as a place of relocation for its citizens in times of overpopulation. The colonies theoretically would provide a productive class of consumers for homeland manufacturers. Hence mercantilist governments also encouraged industrial production and commerce. The theory further inflamed the rivalries that already existed between the European nations, and the governments of these emerging imperial powers sent agents out in all directions to seize the wealth of the world. The economic policy of mercantilism, more than anything else, persuaded the governments of Europe to colonize North America in the sixteenth, seventeenth, and eighteenth centuries.