(Adapted from Hoffer, pp. 50-53.)

The newcomers and natives had profoundly different law ways, but if they wanted to live next to each other, they would have to find some legal middle ground. The first hurdle was in a way the highest–recognizing and managing the differences in expectations and assumptions about law.

Native American Legal Custom

[As a noted scholar has said], “each people has its system of social control, a complex of behavior patterns and institutional mechanisms that we may properly treat as law.” Native American societies were well regulated, and the goal of Native law was harmony and consensus. Rough equality of persons and a clear set of rules for marriage, inheritance, membership in secret societies, election of war chiefs and peace chiefs, and the uses of property were all manifestations of a lawful society.

In individual cases of disputed property or personal injury, parties proceeded by oath giving and taking, much the same as in premodern European societies. It was shameful to lie, and in these face-to-face societies personal honor (or “face”) was highly prized. The Europeans who came to the New World still used oaths in both criminal and civil proceedings, but taking an oath was only the beginning of the legal process, not its entirety. More important, those accused of crimes were not allowed to testify on oath. Among the Native Americans, responsibility for civil wrongs and criminal acts was communal; that is, the perpetrator’s family, kin, or clan might be held liable. For that reason, reparations in response to the anger or grief of the victim were always offered by the group rather than by the individual. The great fear for everyone concerned was that a single act of civil or criminal wrong might lead to a blood feud, a danger that the elders tried hard to avoid.

Searching For Accommodation

The arrival of the Europeans threatened these well-established sys­tems of law. European law was written, coercive, and individualized. Native American law was oral, based on consent, oaths, and shaming, and incorporated a collective responsi­bility. In theory at least, European law was rule-bound book law, top ­heavy with code provisions and precedents. In fact, European legal of­ficials would learn to use experience and common sense to modify rules when the situation required. Native law was reinvented case by case.

As much as the Europeans would have preferred to impose their own legal forms on natives, on the frontier the force of native beliefs dictated compromise. The first step toward compromise was for Europeans to adapt themselves to the Native custom of giving and accepting gifts. In any exchange with other native groups or with Europeans, gifts preceded and accom­panied important messages during the meeting. Europeans adopted this custom, without fully realizing what it meant, for gift giving and gift-based diplomacy became the lubricant of law on the edge.

Next, Europeans had to deal with Natives’ notions of group respon­sibility. This pill was harder for Europeans to swallow. Native Americans regarded offenses as committed by groups, not individuals. In contrast, European ideas of law were based upon determinations of individual guilt or fault, a fundamentally different notion of legal liability from the Native Americans (although in war Europeans were not above assigning collective responsibility to their enemies or making an ex­ample of an entire village of innocents to impress an adversary, as the English did in Ireland).

Still, uneasy with the idea of group responsibility, Europeans always tried to identify a native leader with enough authority to enforce Eu­ropean-style legal judgments upon his or her people, even though there was no native “state” to hear and determine cases and mete out pun­ishment, with the result that any member of the injured person’s family or kin group might claim the obligation of finding and doing harm to the criminal.

In the end, law on the edge of empire usually borrowed from Native notions, and  Native leaders more often played the role of mediator than that of magis­trate. But when the victim was a Native American and the accused was a European, Natives tended to return to their own customs to take vengeance upon Europeans as a group, putting all Europeans in the area at risk. When the victim was a European, Native Americans expected the Europeans to exact retribution, but Europeans demanded instead that the Natives turn over the individual or group that was in fact responsible for the crime. Chiefs facing these demands were caught between a rock and a hard place, for the Native Americans had no such custom and did not expect or wish their elected leaders to become policemen. Only through diplo­macy could such cases be resolved.

Witchcraft cases illustrate both similarities and differences in approach. Native Americans and Europeans alike were afraid of witches. Cherokee men and women ac­cused one another of witchcraft when someone in the village fell ill. Algonkins driven from ancestral lands by Iroquois raids blamed the resulting misfortunes upon witches. New Englanders similarly con­demned witches for otherwise unexplained illnesses, the souring of milk and cheese, and the sudden appearance of dangerous animals. The na­tive shaman and the European folk healer faced charges of witchcraft when their cures went awry–an early form of medical malpractice suit. Native and newcomer suspected one another of witchcraft.

After an accusation was made, European and Native proceeded differently. When Natives suspected there was a witch in their midst, they might or might not bring their suspicions to the village council. They might also take summary vengeance upon the suspect. When the Europeans suspected someone of being a witch, they held formal hearings, took testimony, and, if the evidence seemed serious, bound over the suspect for trial or inquisitorial process. The Europeans were no more skeptical of the charges; they just required that the guilt be proved in some formal legal way.

Finally, Natives did possess ideas of private property, but they viewed private property differently than Europeans did. Native Americans did not claim private land rights as individuals, though villages and peoples had clear ideas of their own territory. The land itself was farmed communally and the fruits of the land and the hunt were shared. Chattels [moveable goods, as opposed to landed property] were personal property, though they might be shared in the village and they could be claimed by their owners at any time. Things not in use, for example, tools lying around, were regarded as free for the taking, a constant source of irritation to Europeans, who saw such taking as theft. Within European communities, as it happened, people were always borrowing one another’s farm implements and tools, but they were expected to ask first. If the loaned item was not returned on time or on demand, a lawsuit might result. Between Natives and Europeans, such mutual mis­understandings were common and could lead to violent confrontations.