A Companion to American Legal History

Sally E. Hadden, Alfred L. Brophy, Sally E. Hadden, Alfred L. Brophy

• Publisher: Wiley-Blackwell
• Year: 2013
• Print ISBN: 9781119711650, 9781444331424
• eBook ISBN: 9781118533772
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

A Companion to American Legal History presents a compilation of the most recent writings from leading scholars on American legal history from the colonial era through the late twentieth century.

• Presents up-to-date research describing the key debates in American legal history
• Reflects the current state of American legal history research and points readers in the direction of future research
• Represents an ideal companion for graduate and law students seeking an introduction to the field, the key questions, and future research ideas

Part I

CHRONOLOGICAL OVERVIEWS

Chapter One

RECONSIDERING THE SEVENTEENTH CENTURY: LEGAL HISTORY IN THE AMERICAS

Elizabeth Dale

Introduction

Commenting in a forum on law in British India, the legal anthropologist Sally Engle Merry noted that colonialism, and colonial law, was always uncertain (2010). Her point applies as well to histories of the seventeenth-century Americas where the uncertainties that Merry identified as arising from law’s contradictory roles as source of order and space of contention are complicated by the fact that seventeenth-century America has always been a disputed space. In the seventeenth century, the boundaries of the Americas were subject to disputes between sovereigns, settlers and native peoples, and settlers from different colonies. Today, those boundaries continue to confound: for many legal histories seventeenth-century America is North America, or the closer confines of British North America. But the Americas extended beyond those boundaries, and studies of law and justice in the seventeenth century need to consider New Spain, New France, the New Netherlands, and Native Americans, as well.

To try to capture the complexity of that territory, this chapter tacks between the general and the particular. It begins at the most general level, considering the seventeenth-century Americas as part of a global story of imperialism and sovereignty. The next section tightens the focus to look at regional studies of law and justice in the Americas, while in the third section the perspective shifts out once again, to consider how the various regional studies might be brought into conversation with one another. The final ­section brings the particular and the general together, suggesting how studies of specific trials might help connect the global to the local.

The Realms of Legal History

Law and Justice

In a recent review, Stuart Banner observed that one “message of this book is that law is almost everywhere, and thus that just about any aspect of the past can be viewed as a facet of legal history” (Banner, 2009: 685). That expansive view has long been a characteristic of the legal histories of British North America (Tomlins and Mann, 2001), and recently has influenced the legal histories of New Spain and New France as well (Owensby, 2008: 5−11; Moogk, 2000). The realm of law in the seventeenth century was blurred for several reasons. Law changed in the Americas, as native people were forced to adapt their systems of law and justice to European settlement (Hermes, 2008), but it also evolved in the early modern European world of which the Americas were a part (Williams, 2010).

Despite the ambiguities at the heart of the law, disputes in the Americas often were cast as legal claims. But even when they were set out in the language of law, disagreements were not exclusively settled through formal litigation. In addition to the courts, disputants could and did appeal to other institutions − imperial governments (Middleton, 2010), a native process (Kawashima, 2001), church congregations (Oberholzer, 1956), or the household (Herzog, 2004) − to resolve their differences. Seventeenth-century actors might frame their claims in the precise terms of law (Offutt, 1995) or the vague language of justice (Herzog, 2004); they could rest their legal claims on custom and practice (Tomlins, 2010), deeds (Baker, 1989), local rules or imperial statutes (Owensby, 2008), scripture or natural law (Dale, 2001), or treaties and charters (Tomlins, 2001).

Studies of law in the seventeenth-century Americas typically share a desire to uncover general principles about law, its place in society and its role in history, precisely because the very nature of law in this period was unsettled. Many concern themselves with law’s function, asking whether the aims of a legal system are to achieve order (Konig, 1979), ensure the rule of law (Offutt, 1995), or enforce shared understandings of justice (Herzog, 2004). Still others tease out the relationship between formal systems of law and illegal or extralegal practices (Godbeer, 2004), or consider whether law is best understood as a site of power and dominance (Pagan, 2002), a place of contestation (McKinney, 2010), a space for negotiation and resolution (Baker, 1989), or an uneasy mix of all of the above (Kawashima, 2001). Another group of studies look at how legal and constitutional systems changed over time, exploring whether legal concepts were borrowed and adapted from earlier traditions (Reinsch, 1899) or how the legal developments of the seventeenth century laid the groundwork for subsequent legal practices and assumptions (Morgan, 1975).

Imperial Agents, Colonial Subjects, or Founding Fathers?

Because the seventeenth century was marked by extensive European efforts to colonize and assert legal control (MacMillan, 2011; Pagden, 1995), seventeenth-century legal actors were rarely people playing out their lives on a local stage, but were characters in larger, transatlantic (Amussen, 2007) and imperial dramas (Herzog, 2004). Broadly speaking, studies of law in the seventeenth-century Americas approach that dynamic from one of three perspectives, though there is sometimes considerable overlap. The first considers whether seventeenth-century legal actors were creators of distinctive American legal regimes. This is the oldest tradition, stretching back to Paul Reinsch’s work at the end of the nineteenth century (Reinsch, 1899), but it has its share of recent practitioners whose studies look to the seventeenth century to find the roots of modern legal orders (Moogk, 2000).

A second approach considers the legal actors as colonial subjects. This perspective is often taken by studies that consider the impact of European settlement on Native Americans (Pulsipher, 2005), but it also is found in scholarship that looks at the legal impact of negotiations between settlers from different countries (Middleton, 2010), explores the influence of colonial slave regimes on European law and society (McKinney, 2010), or traces out imperial efforts to create distinctive, colonial legal systems (Herzog, 2004). A third approach looks at seventeenth-century legal actors as imperial agents, tracing how their decisions implemented (Moogk, 2000), undermined (Koots, 2011), or adapted (Bernhard, 2010) the imperial projects of their sovereigns. In one study of law in New Spain, Brian Owensby offered a variation on this approach, examining how imperial laws were developed to try to control colonial agents and how Native Americans used the imperial laws to check the local officials (2008: 11).

Read as a whole, these studies confirm John Comaroff’s observation that “far from being a crushingly overdetermined monolithic historical force, colonialism was often an underdetermined, chaotic business, less a matter of the sure hand of oppression … than of the disarticulated, semicoherent, inefficient strivings for modes of rule that might work in unfamiliar, intermittently hostile places a long way from home” (Comaroff, 2001: 311). In such a world, the lines between colonizer and colonized are often blurred and that was particularly true in the seventeenth century, notwithstanding the fact that colonial laws often were enacted in order to mark the divisions between colonized and colonizer, or ruler and ruled (Moogk, 2002). Ultimately, those distinctions did take hold, particularly where racial slavery entered into the mix. But as that process unfolded colonial agents undermined imperial authority and command (McKinney, 2010), colonial subjects thwarted efforts to contain them (Daughters, 2009) and settlers constructed their own legal orders (Pagan, 2002).

Constitutional and International Law

As that suggests, international and constitutional law was in flux across the seventeenth century. Although this was the century of the Treaty of Westphalia, with its effort to define national sovereignty and give sovereign nations legal status (Middleton, 2010: 33−34), the scope and shape of international law was unsettled (MacMillan, 2011) and key concepts, from the meaning of imperial authority (Armitage, 2000) to the nature of sovereignty (Benton, 2010) remained unclear. In the colonies, theoretical disputes over sovereign power were complicated by the everyday as claims of sovereignty were ignored by colonial officials (Herzog, 2004) and local disputes escalated into international problems (Middleton, 2010).

These problems were as much issues of constitutional order as they were questions of international law or sovereignty and they were exacerbated because the seventeenth century was a period of considerable constitutional change. In England the Civil War and related internal constitutional debates significantly altered the old order (Nemmer, 1977) while France was “not yet a nation and scarcely a unified kingdom” (Moogk, 2000: 55) in the seventeenth century and experienced its own constitutional tensions as a result. Constitutional weakness at the center was reinforced by conflict in the colonies. There were constitutional disputes within the colonies over who governed (Breen, 1970), an issue that could be complicated by theological differences (Chu, 1987) or social pressures (Morgan, 1975). There were also questions about who was governed and how: Were Native Americans entitled to the rights and protections of subjects of an imperial power, or the privileges typically accorded the subjects of another sovereign, or neither (MacMillan, 2011)? Were women or children part of the political order, and if so, to what extent (Brewer, 2005)? What was the status of Dutch settlers after the New Netherlands became New York (Merwick, 1999), or German settlers in the English colonies of the Chesapeake (Roeber, 1993)? What about settlers who were not Quakers in Pennsylvania (Offutt, 1995) or not Puritans in Massachusetts (Pestana, 2004)? Constitutional ferment in the periphery helped prompt changes in constitutional ideas and practices in Europe (Norton, 1996) just as much as constitutional changes in the center played a role in shaping the rules of colonial governance (Kettner, 1978).

The wealth of recent work on sovereignty and imperialism (Pagden, 2008) invites further work in these areas of law in the seventeenth-century Americas, but more could be done to explore the connections between local problems and imperial designs or to dig down into the sources to tease out support for Benton’s suggestion that “even in the most paradigmatic cases, an empire’s spaces were politically targeted; legally differentiated; and encased in irregular, porous and sometimes undefined borders” (Benton, 2010: 2). So too, we could go beyond our recognition that colonial charters were important (Bilder, 2004) to discover how they were understood and what constitutional roles they played in both the center and the periphery.

Regional Interpretations of Law

In contrast to recent studies of colonialism and imperialism, which look at more than one country (Benton, 2002), legal histories of the seventeenth-century Americas usually follow the flag, focusing on the legal orders established by particular imperial powers. Many of these studies examine law in the British colonies (Hoffer, 1992), and while recent studies by Christopher Tomlins (2010), Richard Godbeer (2004), and Bradley Chapin (1983) survey specific areas of law across British North America, most look at only a specific part of Britain’s American holdings. The largest share explores the legal history of New England (Ross, 2008), but there are studies of northern colonies that look at law in New York (Goebel, 1944) and Pennsylvania (Offutt, 1995). In similar fashion, histories that study seventeenth-century law in the southern colonies are mostly about Virginia or the Chesapeake (Brown, 1996; Konig, 1982; Roeber, 1981), though some studies of the law or legal institutions of the South discuss law in other parts of the region in the seventeenth century (Hadden, 2001; Wyatt-Brown, 1982). A few recent works have pushed the boundaries of the English Atlantic world to include the law and legal cultures of the Caribbean (Bernhard, 2010; Amussen, 2007) and British Canada (Johnston, 2003). While there are not as many legal histories of the other colonies, there are several important works on law in New Spain. Some cover northern New Spain (Brooks, 2001); others consider Spanish legal regimes in the south (Herzog, 2004). In addition, Peter Moogk has written extensively about law and legal culture in his work on New France (2000), and a handful of studies touch on law and legal regimes in the New Netherlands (Middleton, 2010; Merwick, 1999).

The legal histories that consider law and Native Americans are simultaneously sparse and complex. The best overview of this area of legal history is an article by Katherine Hermes (2008). In it, she described two approaches to Native Americans and law in the Americas. One tries to uncover what she calls the “jurispractice” of Native Americans, the “mixture of thought and action taken by ordinary people to construct the law without elaborate legal theories but with definite understanding about the law and its purposes” (Hermes, 2001: 127 n.9). Thus, in his study of land deeds in seventeenth-century Maine, Emerson Baker reconstructed Native American understandings of land and boundaries (1989); Yasuhide Kawashima offered a view of legal practices and culture among the Native Americans in New England in his study of the Sassamon murder trial (2001). Often those studies look at native treatment of property or crime and ­punishment, but some touch on native constitutional principles. Owensby, for example, sketched Aztec institutions and distributions of power in his recent study (2008) and Kawashima offered a similar glimpse at constitutional order in his study of the Sassamon murder. Because of the debates over the extent to which ideas from the Iroquois constitution influenced the U.S. Constitution, there is a more ...

Table of contents

• Cover
• Series page
• Title page
• Copyright page
• Dedication
• Notes on Contributors
• Introduction
• Part I: CHRONOLOGICAL OVERVIEWS
• Part II: INDIVIDUALS AND GROUPS
• Part III: SUBJECT AREAS
• Part IV: LEGAL THOUGHT
• Index