Colonial Law in Early America

Please note that this post is from 2011. Evaluate with care and in light of later events.

In The Common Law in Colonial America, Vol. 1: The Chesapeake and New England 1607-1660, William Edward Nelson writes about three main colonial legal traditions: Virginia, New England, and Maryland. These three centers drew to various degrees from English common law, but deviated from it in a number of important respects and for reasons related to their establishments and purposes. He summarizes their initial influences by noting “that Virginia was founded primarily for economic profit; New England, primarily to create a religious utopia; and Maryland, primarily to establish a haven for persecuted Roman Catholics” (Nelson 7).

Neither Virginia nor New England established their initial legal approaches on English common law. Instead, Virginia sought to pay its investors by extracting maximum labor from local inhabitants “through intimidation and brutality,” not English law (8). New England, on the other hand, looked to “the law of God, not the law of England” as they sought to unify religion and the state and create their religious utopia (8). Maryland, on the other had, sought to protect its initial Roman Catholic settlers by immediately adopting English law and insisting on its protections as more and more Protestants immigrated.

As the need to reassure English investors–who provided Virginia tobacco farmers the capital they needed–that they could recoup their debts grew, Virginia adopted English law. The interest was commercial, and the goal was to create predictability for investors, not to create fairness or justice for its inhabitants. As a result, the bulk of seventeenth century court cases in Virginia revolved around debt collection.

As the importance of protection Roman Catholics lessened and as Maryland began to adopt the plantation practices of Virginia, so too it began to adopt the focus on “black-letter law” that Virginia emphasized as well. Thus rule of law in Maryland joined Virginia’s approach of committing “to government by clear, unchanging dictates that would guarantee the certainty and predictability needed to entrepreneurial investment” (11).

The New England colonies differed in purpose and approach. They were founded on Puritan religious goals that emphasized the importance of religious involvement and the unity of church and state (53). Their farming did not consist of tobacco plantations, but rather emphasized  yeoman farmers who lived close to town and community. Their religion required adherence to community norms (which were strict), but also emphasized justice for both servants and masters. Self-restraint was key, and the community reigned in its most powerful members through increasingly codified laws. Religious belief was fundamental to the different outcome and approach in New England:

Puritanism and its related ideal of harmonious community … kept seventeenth-century Massachusetts from becoming the debt-ridden outpost of British colonialism that Virginia became (63).

New England cared about commerce, but debt collection was never a central concern of its courts. Instead, New England courts dealt with land titles, road building, and schools, as well as the collection of taxes that accompanied a focus on community and community building. English common law provided the backdrop to New England’s laws, but its colonists insisted on codification to increase fairness and reign in abuses by its leadership.

In fact, English common law provided the backdrop to all these American colonies, but “on the ground” social forces “gave legislation a preeminence in American law that it had lacked in England” (131). Religious values gave New England’s colonies a distinct approach that strongly differed from approaches fostered by the economic conditions of Virginia and Maryland. By 1660, there was a distinctly “American” feel to each of these areas approaches to law, but there was not yet a unifying power above all of them that would draw them closer together.