To help us understand how the legal system worked in the context of early America during the more than one and a half centuries of the colonial period (1607-1776), this chapter consists of excerpts from the beginning of a book by Peter C. Hoffer called Law and People in Colonial America (Johns Hopkins University Press, 1998). In this first excerpt (from pp. 1-4 of the book), Hoffer begins with an overview of the English legal system from the perspective of how ordinary people interacted with it. He also introduces the central question that the excerpts in this chapter explore: what ideas about and what aspects of that system did the settlers bring with them to America?

 In the sixteenth and seventeenth centuries the people of Western Eu­rope stirred restlessly. Pride, ambition, and dreams of easy living bid British adventurers look across the Atlantic Ocean with longing in their eyes. Competing with rivals from Spain, France, the Netherlands, Por­tugal, Sweden, and the rest of western Europe, the British ventured into the great ocean beyond the pillars of Hercules, a “New” World.

Imagine, then, a cold, tired, apprehensive assemblage of men and women-perhaps they were Christian Pilgrims, perhaps soldiers, crafts­men, and servants-gathered on the western shore of the Atlantic peering into a densely wooded wilderness. Clutching blunderbusses and Bibles, some must have summoned up memories of the world they had left behind. They needed and wanted order, but most of them had little notion of the formalities of English law. Farmers and laborers, profes­sional soldiers and servants, mothers and wives, they had seen and heard law but not read or studied it, even if they were literate.

A very few knew more. Gentle-born and educated, they had learned law and practiced it, as counsel, judge, or in Parliament. They could recite for their neighbors bits and pieces of the “book law” of England, but bits and pieces were not enough.

Visions of the Law

What images of the law could the voyagers to Boston and Jamestown have brought with them to the New World? A few of the first colonists had the opportunity to visit the great royal courts at Westminster Hall, at the edge of the Thames River. Even for men of means and education unpracticed in law these courts would have seemed a noisy, throbbing beehive. Thronged with petitioners and pleaders, bewildering to any but the initiated few, the courts of King’s Bench, Common Pleas, and Chancery occupied the drafty great hall. Here civil suits arrived from the shires [or: counties] –a veritable flood of litigation over land titles and broken promises, inheritance and trespass.

In the English countryside ordinary people saw the law rather than read it. Few English farmers could read, but many watched the law in operation at one time or another in their lives. Local courts met in newly built courthouses and the halls of old castles–familiar places to which commoners were summoned to pay fines, give evidence, pray for the aid of the justices, or file legal papers. Some sat as jurors.

When the king’s judges arrived to “deliver” the jails of suspected felons and preside over their trials, village and field for miles around emptied their folk into the county town to see the procession of the law. The judges had traveled from Westminster, often on horseback, sometimes by coach, and with them came a train of clerks, attorneys, and their pack animals.

At the edge of the county town the sheriff went out to meet the judges, followed by the justices of the peace for the county, men of means and standing, and another flock of lawyers. Trumpets sounded and the bells of the town church pealed. The entire entourage proceeded to the church, where the minister preached a welcoming sermon. That night there was a feast.

The next morning the judges presided over the selection of grand and trial juries and charged the juries with their duties. For three days, four if the jails were crowded, the judges presided at criminal trials. Jurors sat through the day, hearing and disposing of case after case. Often they mitigated the severity of the “book law.” The judges also heard civil suits sent back for trial in the county after initial pleadings were filed with the central courts in Westminster.