The Many Legalities of Early America

The Many Legalities of Early America

CHRISTOPHER L. TOMLINS
BRUCE H. MANN
https://www.jstor.org/stable/10.5149/9780807839089_tomlins
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  • Book Info
    The Many Legalities of Early America
    Book Description:

    This collection of seventeen original essays reshapes the field of early American legal history not by focusing simply on law, or even on the relationship between law and society, but by using the concept of "legality" to explore the myriad ways in which the people of early America ordered their relationships with one another, whether as individuals, groups, classes, communities, or states. Addressing issues of gender, ethnicity, family, patriarchy, culture, and dependence, contributors explore the transatlantic context of early American law, the negotiation between European and indigenous legal cultures, the multiple social contexts of the rule of law, and the transformation of many legalities into an increasingly uniform legal culture. Taken together, these essays reveal the extraordinary diversity and complexity of the roots of early America's legal culture. Contributors are Mary Sarah Bilder, Holly Brewer, James F. Brooks, Richard Lyman Bushman, Christine Daniels, Cornelia Hughes Dayton, David Barry Gaspar, Katherine Hermes, John G. Kolp, David Thomas Konig, James Muldoon, William M. Offutt Jr., Ann Marie Plane, A. G. Roeber, Terri L. Snyder, and Linda L. Sturtz.

    eISBN: 978-1-4696-0110-6
    Subjects: History, Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. ACKNOWLEDGMENTS
    (pp. v-vi)
    CHRISTOPHER TOMLINS and BRUCE H. MANN
  3. Table of Contents
    (pp. vii-xii)
  4. INTRODUCTION The Many Legalities of Colonization: A Manifesto of Destiny for Early American Legal History
    (pp. 1-20)
    CHRISTOPHER TOMLINS

    When the Institute of Early American History and Culture asked me to consider how one might frame a conference to assess the state of early American legal history, it happened that I was in the grip of an extraordinary book, Remembering Babylon, by my compatriot David Malouf. Remembering Babylon is an account, nominally fictional, actually mythopoeic, of Europeans’ colonization and settlement of a remote land. But in particular it is about the epistemology of colonial encounter—about meetings with landscapes, vegetation, animals, climate, and people all unutterably different from anything the settlers had before experienced, about settlers’ capacities to comprehend...

  5. PART ONE Atlantic Crossings
    • [PART ONE Introduction]
      (pp. 21-24)

      American legal historians have long treated the relationship between early-modern English law and early American law as their point of orientation for the first two centuries of American history—a dominating backdrop that both locates their subject in a wider Atlantic world and serves as a fundamental point of departure for much of what they study on the provincial mainland stage. Methodologically, whether the preferred trope is one of formal doctrinal receptions, of a more pragmatic “carryover and adaptation” of learned traditions, of a mimetic impulse redolent of cultural dependency, or of the obverse—rude self-sufficiency born of self-imposed isolation—...

    • Discovery, Grant, Charter, Conquest, or Purchase: John Adams on the Legal Basis for English Possession of North America
      (pp. 25-46)
      JAMES MULDOON

      One of the most striking aspects of the Spanish conquest of the Americas is the enormous number of treatises that Spanish intellectuals generated in the debate about the legitimacy of the conquest. It is, of course, easy to reject this debate as little more than pious hypocrisy. But doubting the sincerity of the Spanish and questioning the practical value of the debate among intellectuals is too facile, too simple a response. For reasons that are not fully sorted out, Spanish philosophers, theologians, lawyers, and bureaucrats discussed the issue of conquest seriously, at great length, and in enormous detail. There has...

    • Salamanders and Sons of God: The Culture of Appeal in Early New England
      (pp. 47-77)
      MARY SARAH BILDER

      Throughout the seventeenth century, William Harris of Rhode Island appealed. He appealed to the General Court of Trials. He appealed to England. He appealed to a specially convened intercolonial court. And, again, he appealed to England. In fact, Harris traveled at least three times to England to appeal to authorities for assistance with his land claims. He stopped appealing only upon his death—within three days of reaching London after being ransomed from pirates. Roger Williams referred to Harris as “the salamander always delighting to live in the fire of contention as witnesses his several suits in law.” Not today’s...

    • “Rigid and Inclement”: Origins of the Jamaica Slave Laws of the Seventeenth Century
      (pp. 78-96)
      DAVID BARRY GASPAR

      By 1700 several English plantation colonies had been established in North America and in the Caribbean. The economies of these mainland and island colonies were generally based on the exploitation of African slave labor for the large-scale production of exportable staples, but reliance on slave labor was most pronounced in the Caribbean colonies that produced primarily sugar. Varying in size and cultivable acreage, these colonies, scattered through the archipelago that separates the Caribbean Sea from the Atlantic Ocean, also varied in the stages of evolution of their plantation complex—Barbados was the most advanced, followed by the Leeward Islands, and...

    • Legal Fictions and the Rule(s) of Law: The Jeffersonian Critique of Common-Law Adjudication
      (pp. 97-118)
      DAVID THOMAS KONIG

      Despite the venerable common-law maxim, “Justice is a constant and perpetuall will of rendring unto every one their Due,” Virginia attorney Edward Barradall argued vainly in a 1737 case that justice would “clash with a Rule of law” and be denied to the man he represented. His client, an estate administrator, would have to pay a decedent’s debt from his own pocket if the court deemed the obligation to be a debt on a specialty rather than on a simple contract. Both types of obligation derived from written promises, Barradall argued, and the only difference between them was the seal...

  6. PART TWO Intercultural Encounters
    • [PART TWO Introduction]
      (pp. 119-122)

      Social and cultural histories of colonialism the world over have, in recent years, given increasing attention to the dialogic aspect of colonization. Matters once approached as if they consisted of little more than the rapid and overwhelming imposition of European ways on unfamiliar landscapes, in which the fate of indigenous cultures was simply to be transformed or obliterated, have been reexamined for signs of the agency of the colonized. The change has yielded histories that present colonial encounters as processes at once more tentative than previously thought, and with effects mutually rather than singly transforming. The three essays in Part...

    • “Justice Will Be Done Us”: Algonquian Demands for Reciprocity in the Courts of European Settlers
      (pp. 123-149)
      KATHERINE HERMES

      In 1651, after the English colonization of New England had been under way for more than two decades, a sachem of the Mohegans, Uncas, appeared before the Particular Court of Connecticut to make a complaint. An unnamed Long Island Indian had purchased a stolen Mohegan canoe from a Connecticut settler. The Mohegan owner of the canoe then took it back. Uncas was in court to complain about the settler’s theft, despite the return of the object to its owner. He wanted satisfaction, not for the canoe itself, since that was recovered, but for the Long Island Indian who had lost...

    • “Lest We Go in Search of Relief to Our Lands and Our Nation”: Customary Justice and Colonial Law in the New Mexico Borderlands, 1680–1821
      (pp. 150-180)
      JAMES F. BROOKS

      An unusual audience occurred in the Sonoran town of Arizpe, seat of the Comandante General of the Interior Provinces of New Spain, early in the summer of 1780. Bentura Bustamante, “Lieutenant of the Genízaro Indians of the Villa of Santa Fe in the Kingdom of New Mexico,” laid a bold challenge before Spain’s highest-ranking representative in the provinces, the newly appointed Teodoro de Croix. Speaking in the name of thirty-three petitioners, four of whom accompanied him, Bustamante swore that, unless the comandante general addressed their community’s grievance, they faced little choice but to “go in search of relief to our...

    • Customary Laws of Marriage: Legal Pluralism, Colonialism, and Narragansett Indian Identity in Eighteenth-Century Rhode Island
      (pp. 181-214)
      ANN MARIE PLANE

      In october 1766, prompted by the adultery of his wife Mary, Thomas Ninegret sued for divorce in Rhode Island’s Superior Court of Judicature. At first glance, nothing seems unusual about this case. But the Ninegrets’ situation was special. Mary Ninegret was described in court documents as a mulatto, whereas Thomas Ninegret was denoted as the sachem (political leader) of southern Rhode Island’s Narragansett tribe. This group of perhaps a thousand Indians based in southern Rhode Island’s Narragansett plantation country had survived the devastating King Philip’s War of 1675–1676. They retained a large block of lands stretching across the southern...

  7. PART THREE Rules of Law:: Legal Relations as Social Relations
    • [PART THREE Introduction]
      (pp. 215-218)

      Legal historians too often assume that law has social effect without seeking to demonstrate it—or perhaps they simply find investigating law’s doctrinal genealogies, institutional structures, cultural manifestations, and ideological consequences sufficiently compelling in itself to render superfluous the social historian’s claim that consequences “on the ground” must also be exposed before legal rules can be considered worth examining. Such inattention to demonstrable effects, of course, tends to confirm the social historian’s skepticism that legal history can help us understand social formations or social relations. More occasionally, it inspires the alternative and more interesting conclusion that the real significance of...

    • “Liberty to Complaine”: Servant Petitions in Maryland, 1652–1797
      (pp. 219-249)
      CHRISTINE DANIELS

      Since the late nineteenth century, historians have examined servitude as a labor form in the Anglo-American colonies. Early works on the political and legal status of bound labor, based heavily on statute law, were written in an atmosphere permeated with ideas of American exceptionalism; most focus on the original—indeed (as they argued) unique—nature of colonial indentured servitude.¹ During the first half of the twentieth century, scholars placed growing emphasis on the economic side of servitude as well. Their works were hybrids of legal analyses, again based on statute law, and macroeconomic analyses of labor needs in the Anglo-American...

    • “As Though I My Self Was Pr[e]sent”: Virginia Women with Power of Attorney
      (pp. 250-271)
      LINDA L. STURTZ

      In 1716, William West planned to leave his Essex County home. Prominent among the arrangements he made for the management of his affairs during his absence was a grant to his wife, Elizabeth, of a power of attorney allowing her to do “all my business whatsoever Relating to me as though I my self was pr[e]sent.” Thereby, Elizabeth West, even as a married woman whom the law defined as a feme covert, gained the authority to manage property and legal matters as she deemed proper. She was not alone. Judging from this and similar grants in the seventeenth and early...

    • Women and the Political Culture of Eighteenth-Century Virginia: Gender, Property Law, and Voting Rights
      (pp. 272-292)
      JOHN G. KOLP and TERRI L. SNYDER

      On June 27, 1787, Anne Holden of Accomack County, Virginia, made nearly identical deeds to Joseph Boggs and Elijah Milbourne. In consideration of her “natural love and affection” for them, Holden gave each man twenty-five acres of land, specifying that the property enable them to “vote at the Annual Elections for the most Wise and Discreet men who have proved themselves real friends to the American Independance.” After a year and with a house on it, the twenty-five acres were precisely the amount necessary to qualify Boggs and Milbourne as voters in Virginia’s elections. Holden gave the same gift of...

    • Age of Reason? Children, Testimony, and Consent in Early America
      (pp. 293-332)
      HOLLY BREWER

      In 1789, twelve-year-old Susannah Brown was not allowed to testify against the man who raped her, because the Virginia judges thought her too young. These same judges, however, deemed her old enough to consent to marry the same man. In 1811, two-year-old Phebe Stuart placed her mark at the bottom of an apprenticeship contract, indicating that she consented to her indenture. Why such inconsistency? Are such inconsistencies peculiar to colonial or Revolutionary law? Or derived from the English common law? Answering these two seemingly simple questions, about which the statutory law said almost nothing, led to the law books that...

  8. PART FOUR Rules of Law:: Legal Regimes and Their Social Effects
    • [PART FOUR Introduction]
      (pp. 333-336)

      The fluidity and diversity characteristic of early American legal regimes during the seventeenth century was succeeded in the eighteenth by an explicit crystallization and routinization of doctrine, practice, procedure, and administration. Legal historians have had resort to the term “Anglicization” to characterize these eighteenth-century trends, suggesting a generalized turn throughout the English colonies toward an increasingly uniform legal culture, modeled on and influenced by that of eighteenth-century England—professionalized, formalized, committed to the technicalities of common-law practice and procedure. The essays in Part IV help to illustrate this transformation, flesh out its institutional embodiments and dynamics, and explore its meaning...

    • Was There a Calvinist Type of Patriarchy? New Haven Colony Reconsidered in the Early Modern Context
      (pp. 337-356)
      CORNELIA HUGHES DAYTON

      A central theme in the field of American legal history has been the fate of English legal institutions once they were transplanted to North American settings. Rather than engage directly with an older literature that focused on the transmission of the common law to America, the essays in this collection approach the topic of early American legal development with a broader set of analytical questions. Characterizing the place or reign of English law among the many legalities of early North America means asking about state and class formation, intercultural exchange and accommodation, and crystallizing ideologies of racialism and gender hierarchy.¹...

    • The Limits of Authority: Courts, Ethnicity, and Gender in the Middle Colonies, 1670–1710
      (pp. 357-387)
      WILLIAM M. OFFUTT JR.

      When discussing the legal systems of various Anglo-American colonies, historians commonly stress the elites’ quest for authority, and with good reason. Colonial courts possessed extremely modest abilities to compel obedience. Law was only one of a number of discourses available for colonial elites and colonial peoples to choose from in order to make sense of their lives and regulate their societies. By necessity as well as in emulation of practices in England, courts as local institutions would have to rely heavily on widespread participation of the populace (particularly but not exclusively adult male property owners) to serve in various roles...

    • Farmers in Court: Orange County, North Carolina, 1750–1776
      (pp. 388-413)
      RICHARD LYMAN BUSHMAN

      Anyone studying farmers in early America must go to court, as the farmers themselves did so often throughout their lives. As young farmers, they registered deeds to their first lands or received inheritances from their fathers at court; as old men, they passed on farms to their children. At every stage, they went to court to sue for debt or be sued, to petition for mills or taverns, to have roads laid out and repaired, and to register cattle marks. In most places, county courts imposed the taxes assessed to the farmers’ names on the tax lists. If a farmer...

    • The Long Road to Vidal: Charity Law and State Formation in Early America
      (pp. 414-441)
      A. G. ROEBER

      Does any one desire that the old times in religion should return?” queried John Sergeant before the United States Supreme Court in January 1844. “What was the spirit that led to burning the convent near Boston? Precisely this. Religious acrimony now destroys property, if it does not doom to the stake.”

      The case Sergeant was arguing, Vidal et al. v. Girard’s Executors, commonly referred to as the Girard Will case, may seem an odd starting point from which to call for a reassessment of our understanding of law, religion, and state formation in early America. Though justly famous among legal-constitutional...

  9. AFTERWORD The Death and Transfiguration of Early American Legal History
    (pp. 442-448)
    BRUCE H. MANN

    One of life’s many small epiphanies came to me at the conference from which the papers in this volume are drawn, when I heard myself described by a young historian whose work I admire as “a traditional legal historian.” Despite my quickly determining that the speaker did not intend “traditional” as a euphemism for “old,” I nonetheless had to admit, after furtive glances in mirrors both real and intellectual, that what was once trumpeted as the “new” legal history is now middle-aged. One might even argue that it is dead, a prospect about which I admit ambivalence.¹

    The blending of...

  10. INDEX
    (pp. 449-464)
  11. NOTES ON THE CONTRIBUTORS
    (pp. 465-466)