Empires of the Atlantic World: Britain and Spain in America 1492-1830 (32 page)

Outside the New England charter colonies, representative assemblies for much of the seventeenth century were slow to find their feet, and were liable to be dominated by the governors and their councils.91 Yet the potential for conflict existed from the start, as governors anxiously sought ways of covering the rising costs of administration and defence, while assemblies began to appreciate the political leverage offered by control of the purse strings. It was the same story as that of the House of Commons, with which the assemblies or their lower houses increasingly tended to identify themselves. In Virginia, where the governor's council had been the dominant element for the first sixty or seventy years of the assembly's existence, William Fitzhugh, a lawyer, proudly referred in 1687 to the House of Burgesses, now sitting as a separate branch of the assembly, as `our Parliament here'.92 By the eighteenth century, following the historical model of the House of Commons, the lower houses were seeking sole authority over the raising and disbursement of revenues, and were gradually eroding the legislative powers of the governors' councils.93

In contrast to Spanish viceroys and governors, British colonial governors were also handicapped by the absence of a royal bureaucracy. Without it, they were overwhelmingly dependent on local resources for providing the officers of government and justice, especially in the first decades of settlement when the patterns of administration were being laid down. While overall responsibility for administration in the colony rested with the governor and his council, they naturally looked to English precedents as they set about establishing a framework of government. Unable to count on a regular provision of judges and officials from Britain, equivalent to the stream of Spanish judges and officials travelling over to take up posts in the Indies, they had no choice but to rely on the co-operation of the local elite. As a result, the English system of local self-government at the king's command was transferred to the colonies.

One disadvantage of this was that for a large part of the seventeenth century, and in some colonies beyond it, elites were still in the making. This meant that there was no substantial pool of colonists with a tradition of administrative and judicial service, like the English country gentry, to occupy the posts that had to be filled. By the 1630s the first-generation elite of Virginia, heavily composed of immigrants drawn from the upper ranks of the English social hierarchy, had largely died out. It would take time in this ruthlessly competitive land-grabbing society to forge from among the successful planters a new and stable elite with the inclination, capacity and sense of service to discharge the burdens of office with dedication and competence.94

As plantations began to spread through the Tidewater, creating problems of communication over long distances, it ceased to be possible for the governor and his council to perform the tasks of local government, and new institutions were urgently needed to help maintain law and order and regulate disputes. Eight shires, or counties, were established in Virginia in 1634, `which are to be governed as the shires in England. And Lieutenants to be appointed the same as in England, and in a more especial manner to take care of the war against the Indians. And as in England sheriffs shall be elected to have the same power as there; and sergeants, and bailiffs where need requires."' By 1668, with a flood of immigrants pushing up Virginia's population from 5,000 to 40,000, the number of counties in Virginia had grown to twenty, each with its own county court consisting of justices of the peace, a sheriff with policing and tax-collecting duties, and a clerk and several minor officials.96

The operations of these county courts were modelled on English quarter and petty sessions, although with little of the splendour of their English originals.97 Ceremonially, this was a pared-down version adapted to the more rugged requirements of early colonial society, but, as the General Assembly devolved more and more duties on them, the courts accumulated powers that came to extend beyond those to be found at the equivalent level in England. They became in effect units of government, with a wide range of responsibilities in the management of local life. In the absence of church courts in Virginia, the county courts took over a range of functions which in the home country fell within the sphere of ecclesiastical jurisdiction, like the right to probate wills. In many areas of concern, including those of public and private morality, they worked in close partnership with the vestries, the governing bodies of the parishes into which the county was divided.98 In Spanish America the church-state partnership ran all the way down the administrative scale, with the institutional church heavily subordinated to royal authorities enforcing regalist policies. In the Anglican colony of Virginia, it operated primarily at the local level, with church business subject to management by the local planter oligarchies which came to dominate county life as a whole.

As the powers of jurisdiction of the county courts were continually augmented by the General Assembly, an essentially decentralized system of government and justice established itself in Virginia, as also in the neighbouring colony of Maryland. The governor and his council increasingly retreated from local government, and, with justices of the peace empowered to hear all cases in criminal law and equity after 1645, the council, sitting as a court, reduced the range of its activities until it was effectively transformed into a court of appeals. Nominally, appointment of justices of the peace rested with the governor, but from the 1660s he was doing little more than formally ratifying choices made at the local level as the planters competed for, and carved up, offices in the county courts among themselves.99

Some settlers, as `new men' who had crossed the Atlantic in search of social betterment, had little or no experience of administering the law at home, although many would at some stage of their lives have come into contact with the courts in England, whether as jurymen, witnesses, plaintiffs or defendants. A number, however, had studied law at the universities and the Inns of Court. Yet even these were confronted on arrival in America with conditions very different from those they knew at home, and now found themselves called upon to meet the heavy challenge of devising and implementing laws that had to be shaped to conform to the needs of societies in the making.

They could only do this by making creative use of such legal traditions as lay to hand, combining them, as appropriate, with the injunctions of divine law and a strong dose of pragmatism. Renaissance England, like Renaissance Spain, was a country endowed not with one system of laws but several. In Spain, a land where Christian, Jewish and Moorish legal systems had coexisted in the Middle Ages, Christian and royal law, although now triumphant, was still hemmed in by customary law, in the form of regional and local juridical privileges, or fueros. It was also restricted by corporate privileges - the fuero militar, granting various immunities to soldiers, and the fuero eclesikstico, which confined a wide range of offences to the church courts, and shielded the clergy from secular jurisdiction. Legal pluralism was equally the order of the day in Tudor and early Stuart England. Not only did civilian lawyers continue to contest the claims of the common law to supremacy, but the common law courts competed in a crowded field with a multiplicity of courts, each with its own form of jurisdiction - church courts, admiralty courts, law merchant courts, local and manor courts, and prerogative courts like the Star Chamber.'°°

Out of this welter of legal systems the first settlers in each new colony had to fashion a legal and court system which would enable them to build civil societies in an alien environment and regulate their relations with the indigenous peoples into whose lands they had moved. In Spanish America, royal officials were quickly on the scene to impose royal justice and the laws of Castile. In the English settlements, on the other hand, the settlers were left largely to their own devices, and had to come up with creative answers of their own, drawing as best they could on legal memories, and guided by William Lambarde's Eirenarcha (1581), Michael Dalton's The Countrey justice of 1619, and other essential handbooks for English justices of the peace.

The transplantation of cultures leads to selectivity, as emigrants, especially if drawn from different regions, are driven by circumstance to pare down to a single common denominator, or a few essentials, the forms and institutions of the mother country which will give order to their lives in an alien world. Not surprisingly, therefore, the multiplicity of courts to be found in England gave way in the colonies to a unified court system.10' Yet at the same time the absence of central direction from England, and the presence of numerous different settlements along the eastern seaboard, tended to have an opposite effect when it came to drafting new legal codes. Each colony struck out on its own to shape a system of laws appropriate to its needs, and although colonies borrowed ideas from each other, their codes inevitably reflected the time of origin of the initial settlement, the character and aspirations of the first wave of settlers, and the situation they found on their arrival in America.

In early Virginia, for instance, the need to discipline a tumultuous colony found expression in a resort to the prerogative notions of English military justice and the judicial practices of the English border regions. Gradually, as the colony was stabilized, the colonists incorporated appropriate aspects of the common law, while at the same time the Virginia General Assembly displayed growing confidence in drafting statutes to cover novel circumstances.102 The lawmakers of Massachusetts, for their part, drew on a wide range of sources in addition to the common law, including the Scriptures, European concepts of civil and natural law, English and foreign local customs, and the law reform proposals being advocated in the home country during the colony's early years. The outcome was the carefully devised Massachusetts legal code of 1648, which gained wide popular acceptance. The aggrieved were encouraged to take their chances at law, and, as a result, the Massachusetts courts provided a valuable forum for conflict resolution in a naturally contentious society.lo3

The plurality of the legal systems established in seventeenth-century English America, however, was to come under growing pressure during the second half of the century, as a consequence both of developments in the home country and of the determination of the imperial government under the later Stuarts to take the colonies in hand. In the Civil War period the English prerogative courts were abolished, and they were not restored when the monarchy returned in 1660. The church courts, although re-established, saw the scope of their jurisdiction reduced. The implications were clear. The common law was close to achieving definitive victory over its adversaries, and the effects of this were soon to be felt in the colonies. In the years immediately before and after the Glorious Revolution, imperial officials embarked on a strenuous attempt to bring colonial legal systems into line with the practices of the English common law At the same time, the arrival in America of growing numbers of settlers who had been trained in the common law, and the increasing tendency of the settlers themselves to send their sons to England for a legal education at the Inns of Court, inevitably led to the gradual anglicization of colonial law and legal practice.

The progressive subordination of the diversified legal culture of the colonies to the uniformity of the English common law in the century between the 1680s and the 1770s necessarily involved the closing of several avenues for redress that had been open to suitors in the settler communities during the early years of settlement. At the same time, growing professionalization in the world of the common law led to rising costs of litigation, which in turn discouraged the poor from bringing suits.104 Yet, as in Spain's American territories, the uniformity was far from absolute. In both colonial worlds, specific local circumstances continued to require local legislation; and the presence or proximity of Indians forced the settler societies into accommodation with indigenous customs and traditions, especially in the borderlands.

In British America, moreover, there were matters of great moment on which the common law was largely silent. These included slavery, questions of landownership and distribution, and the resolution of border disputes. On such subjects, each colony tended to develop its own rules and practices, or borrow them from others. A degree of legal pluralism therefore continued to survive within the tightening legal framework of a British Atlantic civilization. But by degrees that framework of shared Atlantic law and practices came to be prized in the American colonies as guaranteeing the fundamental English liberties. One of the most fundamental of these liberties was the right to judgment by one's peers.

Trial by jury as a fundamental right of Englishmen had been extended to Virginia by the charter of 1606, but Tudor and early Stuart England had seen a trend to limit the use of juries in favour of more summary forms of justice. The resulting uncertainty in the mother country over the use of juries crossed the Atlantic with the settlers. In the Chesapeake colonies, with their thinly scattered population, it was difficult and expensive to assemble a jury, and for much of the seventeenth century juries tended to be dispensed with, even in civil cases. The magistrates of Puritan New England, whose reverence for biblical law exceeded their reverence for the English common law, showed a strong preference for summary justice - a preference not, however, shared by Rhode Island, whose settlers had moved there from the Bay colony in the hope of escaping from the rigours of magisterial justice, and who not unnaturally possessed a special fondness for juries. In the second half of the century, however, as freemen became increasingly resentful of magisterial domination, and as fears grew about threats to liberty under the later Stuarts, juries became an increasingly established feature of public life throughout the New England colonies, to the point that civil juries came to be used far more extensively than they were in England itself.'05