Reading William B. Stoebeck’s “On the Reception of English Common Law in the American Colonies”

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

In 1968, William B. Stoebeck published “On the Reception of English Common Law in the American Colonies,” a discussion of how and when England’s common law came into use in the American colonies. In the article, he first discusses three “standard theories”:

1. that English common law was in force in the colonies from the time of the first English settlement;
2. that, quoting Paul S. Reinsch, the colonies “underwent ‘a period of rude, untechnical popular law, followed, as lawyers became numerous and the study of law prominent, by the gradual reception of most of the rules of English common law’”;
3. or instead, citing Julius Goebel, that the colonists instead adopted the “customary law of the local courts the colonists had known in England” and not the common law “of the king’s courts at Westminster.”

Before discussing the historical record, Stoebeck first bookends the problem by noting that, first, “there was no common law in America on 12 May 1607″ and, second, there are case reports and so on available post-Revolution that provide solid insight on where “common-law reception … must have stood on Independence Day” (395-96).

A lack of lawyers

In the 17th century, there was a paucity of lawyers in the colonies. There were very few English-trained lawyers in Massachussetts, only three were known to be in Connecticut, one in Maine, thirty-some-odd in Virginia, two in Maryland, and none anywhere else (405). With no law schools, no real bar, and no real apprenticeship possibilities, there were likely few, if any, American-trained colonial lawyers either. Kermit Hall’s 1989 book reinforces this:

Antilawyer sentiment was pervasive elsewhere as well, and the “ancient English prejudice against lawyers secured new strength in America.” The framers of the Fundamental Constitutionsof the Carolinas in 1669 declared it a “base and vile thing to plead for money or reward.” Connecticut and Virginia during a portion of the seventeenth century prohibited lawyers from practicing. (Hall 21-22)

As a result of the limited availability of trained lawyers, Stoebeck suggests that it’s unlikely that the colonists would have adopted or used the complex English common-law system in anything other than a limited manner.

What law?

Even when charters of the new colonies referenced the laws of England, Stoebeck points out, there is an additional problem: which laws of England? According to Edward Coke, a 17th-century jurist, lists fourteen types of law in England: “the law of the crown, law of parliament, law of nature, statute law, customs, ecclesiastical law, etc., of which the ‘common law of England’ was only one” (397).

Even contemporary discussions of the “common law” in the 17th century often did not clearly distinguish what was meant. Colonists, for example, would clamor for the protections of the “common law of England” when resisting unpopular or autocratic actions by English or colonial governments. They were not, however, advocating for the “king’s law,” nor for the common-law writ system, but rather for what we might consider today to be Constitutional protections, like a right to a trial by jury (410).

Every colony is different

Stoebeck explores the complexities of the various colonies, each of which has a different foundation story and a different relationship with England. Virginia, for example, was founded by an English corporation and intended to benefit investors back in England, while Massachusetts was founded by religious dissidents who often preferred Biblical precedent. As a result, it’s hard to speak of a single “reception” in America.

1700 is a turning point

Nonetheless, Stoebeck suggests that the turn of the eighteenth century marked a turning point for all the colonies (407, 410). The 1696 Navigation Act, for example, imposed much more clearly English legal control over admiralty jurisdiction in the colonies (408). The Privy Council began examining court procedures and the Council of Trade and Plantations began to exert pressure to codify colonial laws (409). (I should note, too, that the first Virginia Slave Code dates from 1705, and other slave codes were enacted from the 1660s into the early 1700s.)

Conclusions

Stoebeck clearly rejects the first theory of common-law adoption (that it was applied from the moment of settlement), since most of his historical discussions involve the complex ways in which English common law was not in use in the colonies before the Revolution. But beyond that, his account explores a variety of paths that each different colony took. Some more quickly adopted English practices than others, and all began to do so more at the turn of the 18th century, but none fully adopted English practice until late in the century (if they even did then). Some did apply more local custom and practice as used at home in England, others used indigenous procedures and approaches, and all codified distinct statutory laws.

But whatever their path, by the end of the 18th century the colonies–now the United States–explicitly adopted English common law (even if what that was, exactly, wasn’t always clear) through statute or in their Constitutions, and jurists used English precedent into the 19th century (and occasionally today, too).

Stoebeck ends his account by saying,

The reception process had been very much an indigenous affair, for the English home government had acted only haltingly to impose adoption of the common law.

And, finally, he says,

The post-Revolutionary evidence makes it nigh conclusive that Chief Justice Daniel Horsmanden spoke not only  for New York but of colonial America when he said in 1765 that the court applied the common law ‘in the main.’”

Thus, the end of the reception story is “secure,” even if the story of the process “has some missing planks.”