Weakening the Bonds of Empire

Patterns of compromise and respect for colonial and imperial government concerns began to fray in the mid-1730s, thereby weakening the bonds of empire. A major event was the widely published Zenger case in New York, in which a local jury nullified a royal governor’s demands. Conflict between royal and local interests continued in connection with the matter of the pistole fee and the Parson’s Cause in Virginia, with regard to the chartering of a college in New York, and in a series of Pennsylvania cases ignoring acts of Parliament and other English law. A key moment of conflict was the 1761 Writs of Assistance Case in Massachusetts. In conjunction, these cases developed a body of American constitutional theory in sharp contrast to the prevailing norm of parliamentary supremacy.

New Netherland

This chapter examines the Dutch mercantile colony located on Manhattan Island and in the Hudson Valley up to Albany, English settlements on Long Island, and a small initially Swedish colony along the lower Delaware River. Its main focus is on the legal system created by the Dutch. It was a sophisticated, centralized, civil law system that reposed ultimate decisional power in the hands of a director-general directing the government from Manhattan Island and in the hands of his superiors in the Netherlands. The English settlements on Long Island, on the other hand, copied the localized power structures of New England, although the Long Islanders operated more informally and less learnedly. Dispute resolution in the tiny colony along the Delaware was unlearned and totally informal.

Testing the Bonds of Empire

This chapter focuses on three British actions—the Proclamation of 1763, the Stamp Act, and the Declaratory Act—that led to the maturation and refinement of American constitutional theory and the articulation of the doctrine of judicial review: the doctrine that courts have power to invalidate legislation that is inconsistent with constitutional norms. The main focus of the chapter is on the Stamp Act and on a series of cases and other judicial actions, which are analyzed colony by colony, declaring the Stamp Act unconstitutional.

The Well-Functioning Empire of the Mid-Eighteenth Century

This chapter claims that in large part, the government and legal system of the mid- eighteenth-century British empire functioned well in the interests both of the governing classes of Great Britain and of the residents of the colonies. Effective functioning was a result of constant compromise in which Britain and its colonies, although both had divergent and often conflicting interests, never pushed those interests to their limits but instead routinely compromised out of concern for each other’s needs and concerns. The chapter proceeds by examining successful governing practices in several of the colonies and then turns to two locales—northern New York and North Carolina—where government was ineffective.

Criminal and Regulatory Law

Colonial judges had significant criminal and regulatory responsibilities that are the subject of this chapter. A major focus was on sex crimes, the prosecution of which varied considerably from colony to colony. Adoption of the criminal procedure norms of the common law was more uniform in all of the colonies. The chapter ends with an examination of the administrative and regulatory norms of colonial courts in connection with such matters as the building of infrastructure, taxation, the licensing and control of the liquor business, and the regulation of elections.

New England

This chapter focuses mainly on developments in the law of the Massachusetts Bay Colony, which was founded as a Puritan utopia to display to rest of the world how a society should be governed. Although Massachusetts incorporated elements of the common law into its legal system, the dominant source of law was the word of God. But the divine word, which was enforced by the magistrates of the Court of Assistants, sometimes met resistance from local juries. A major issue throughout the 1630s and 1640s was whether the magistrates or local people would have final authority to determine the substance of the law; the issue was resolved in 1649 by providing for appeals in all cases of judge-jury disagreement to the General Court sitting as a unicameral body in which representatives of localities outnumbered the magistrates and thus had final authority. The chapter ends with a brief look at legal developments in Connecticut, New Haven, Plymouth, and Rhode Island.

Severing the Ties of Empire

This chapter examines legal developments between the passage of the Declaratory Act and the outbreak of the American Revolution. It also examines various rebellions against colonial governments that took place during the 1760s. In the end it shows how policies of conciliation and compromise that had made the British empire function effectively in the mid-eighteenth century broke down by the mid-1770s.

A Historian’s Postscript

This brief concluding chapter summarizes the main claims of the book and argues that law is typically enacted by elite leaders but must also be accepted and obeyed by ordinary people to be effective.

Ready Acceptance of the Common Law: Pennsylvania, New Jersey, and the South

William Penn and the Quakers who had earlier settled West Jersey appear to have understood, as had Lord Baltimore a half century earlier in Maryland, that the common law provided the best possible protection of property rights and that protecting the property of Quaker settlers was the best means of protecting their religious freedom. Accordingly, both Pennsylvania and West Jersey adopted the common law at their first settlement. East Jersey Puritans interposed some resistance to the common law, but the colony gradually adopted it as it gained traction in neighboring New York. All colonies south of Virginia received the common law at their founding.

The End of Resistance and the Triumph of the Common Law

This chapter discusses the end of resistance and the acceptance of the common law in New York City in the 1670s, in the rest of the colony of New York in the 1680s and 1690s, and in Massachusetts and New England in the early eighteenth century.