This chapter examines the legal systems that operated in the colonies, drawing once again on the book by Peter C. Hoffer, Law and People in Colonial America, that was also used in Modules 1 and 2. This introduction assesses the overall impact of English law on the early colonies and the character of colonial courts (from Hoffer, pp. 14-15, 24-30), while the following section discusses some of the contrasts between the settlers’ law and that of Native Americans (ch. 1.1; from Hoffer, pp. 50-53).

The Irony of Transmission

The crown tried to use legal forms to give shape to a vast and uncertain imperial enterprise. The forms chosen, the colonial charters, turned out to be ill-suited to the realities of colonization. The colonies of Virginia and Massachusetts soon bore no relation to merchant company trading posts. Both became commonwealths, self-­conscious conglomerations of communities, instead of outposts of English capitalism.

At the heart of the irony was a legal question: what status had colonies in English law? In theory they were part of the king’s personal domain, but fact preempted theory. Far from England, thinly popu­lated, rich in natural resources, and occupied by men and women who knew their own minds and grasped a bargain when they saw it, the colonies edged toward self-government. When English authorities tried to make the imperial system more efficient and responsive to the wishes of the crown, colonial elites cited their old liberties and dug in their feet. The pattern appeared early in Virginia’s history and persisted until the final crisis, in 1776.

King Charles I of England [1625-42] thought seriously about dis­persing the colonists of Massachusetts and taking back the charter, but political troubles closer to home prevented him from acting [a civil war began in 1642, and Charles was beheaded in 1649]. He could and did use his power to reward his friends and punish his enemies in the colonies, but he was too far away to disturb the emerging patterns of colonial self-governance.

Wherever they went in the Americas, the English signaled their ac­quisition of land by planting on it. For it was not some abstract notion of “discovery” that conferred the right to the land, but its improvement. Bounding the land, whether by survey, grant, or actual occupation, fulfilled the letter and spirit of England’s land law in her colonies as in the home counties.

The crown never intended its chartered companies to become commonwealths in the wilderness. Viewed in this very narrow way, the transmission of English law to North America was a failure of vast proportions. It is important to remember, how­ever, that the transmission of English law to the colonies did not stop with the foundation of Massachusetts and Virginia. Substantive law in the colonies actually moved closer to English common law as time progressed.

In the second wave of colonization, stretching from the 1630s to the end of the seventeenth century, colonial officials in London still sought to impose law upon the settlements, but their efforts met with little success in the face of popular protest and shared hardship. In the colonies of the seventeenth century codes and courts emerged that promised equal protection and representative govern­ment, at least to freemen with property.

The Structure of the Courts

By the end of the seventeenth century the American “court day” would have its own visual signposts. They would be more intimate in scale than those of England but just as important a part of community life. The wood or brick courthouse would stand in the center of the county seat, its yard filled with jurors, lawyers, witnesses, and spectators when the quarter sessions court [aka, the county court] was in session or, in some colonies, when the supreme court arrived on its circuit. The pillory and whipping post would be erected nearby. A rude jailhouse would complete the scene, sometimes filled with men and women too poor to pay court costs, or meaner sorts waiting for their trials in felony cases. Here the great and humble mingled, acting out the law in complex rituals of deference and dignity.

Unlike the English system of compartmentalized and specialized tri­bunals, almost all of the seventeenth-century colonies developed an overlapping hierarchy of courts of general jurisdiction. Petty sessions held before justices of the peace were the lowest level of official tribu­nal. Above them sat county courts. Supreme or superior courts were the highest courts in the colony. The jurisdiction of the lower courts was limited by the jurisdiction of the higher courts. At the same time, a case might move from a lower court to a higher court on “appeal” and be reheard.

The county court was the workhouse of justice. Meeting as a court of “common pleas,” it heard civil suits. Recon­stituting itself as a court of “general sessions of the peace,” it per­formed the regulatory tasks of the English quarter sessions courts and disposed of serious misdemeanors. The only limit on the jurisdiction of the county courts was that they could not hear cases of life and limb (felonies) or civil business in excess of some monetary ceiling. The jus­tices of the peace who held court were drawn from the landed elite of the county and might be trained in the law. The first colonial county courts were often held in the houses of men of means, and some of the most important figures in the colonial government began their careers as justices of the peace.

County courts regularly heard the presentments [formal complaints and indictments] of the grand juries, whose members were men of some substance and standing in the county. The jus­tices also heard lawsuits among planters, yeoman, servants, and, on rare occasions, Native Americans. Most of their business concerned the survey, sale, and inheritance of land, but a significant portion revolved around per­sonal status and dignity. Servants wanted better treatment from their masters; possession of slaves was contested; bouts of drinking led to assaults; families quarreled about wills.

The county courts were also the first (and sometimes the last) admin­istrative agencies in the colonies. Although as time passed the crown would create an administrative superstructure for the colonies, imperial administrators rarely penetrated to the interior of the colonies. The only royal bureaucrats one might find inland were surveyors, Indian agents, and, during wartime, officers of the king’s army. Instead, it was the justices of the peace and their grand jurors who made sure that the roads were clear, nuisances were removed, fees and fines schedules imposed by colonial legislatures were obeyed, and local taxes (frequently the only taxes in the colonies) were paid on time.

The localistic, ama­teur, collectivist, and partisan quality of this “country bureaucracy” would become the model for revolutionary self-government in the 1770s and accompany the framers of the federal Constitution to Philadelphia in 1787.

Above the county courts were colonial courts of superior jurisdic­tion, sometimes styled supreme courts. In Massachusetts this was the Court of Assistants, the governor’s council wearing their judges’ hats. After 1692 the judges of the court were appointed by the crown and went on circuit, meeting twice each year in the various county seats.

In Virginia the General Court sat only in Williamsburg, the colonial capital. The judges of the General Court were the governor and his council, an arrangement that persisted until the outbreak of the Revolution.