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Influences of New England Law on the Middle Colonies

Published online by Cambridge University Press:  28 October 2011

George L. Haskins
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Extract

On October 3, 1881, William Henry Rawle, the distinguished Philadelphia lawyer and scholar, addressed students at the University of Pennsylvania Law School hoping to illustrate, ‘in a very general and elementary way,’ the differences between the growth of English and early Pennsylvania jurisprudence. ‘It would have been more interesting and more broadly useful,’ Rawle apologized to his audience, ‘if the attempt could have been extended to embrace the other colonies which afterwards became the United States, for there would have been not only the contrast between the mother country and her colonies, but the contrast between the colonies themselves.’ Rawle was confident that such an examination would have revealed how ‘in some cases, one colony followed or imitated another in its alteration of the law which each had brought over, and how, in others, the law was changed in one colony to suit its needs, all unconscious of similar changes in another.’ ‘Unhappily,’ Rawle explained, ‘this must be the History of the Future for the materials have as yet been sparingly given to the world.’

Type
Articles
Information
Law and History Review , Volume 1 , Issue 2 , Fall 1983 , pp. 238 - 250
Copyright
Copyright © the American Society for Legal History, Inc. 1983

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References

1. Rawle, Wiliam Henry, Some Contrasts in the Growth of Pennsylvania and English Law (Philadelphia, 1881) 3Google Scholar. Two other early works on Pennsylvania law are: George, Staughton, Nead, Benjamin M. and McCamant, Thomas, eds., Charter to William Penn, and Laws of the Province of Pennsylvania, Passed Between the Years 1682 and 1700, Preceded by the Duke of York's Laws in Force from the Year 1676 to the Year 1682 (Harrisburg, 1879)Google Scholar; Lawrence Lewis, Jr., ‘The Constitution, Jurisdiction and Practice of the Courts of Pennsylvania in the Seventeenth Century,’ a paper read before the Historical Society of Pennsylvania, March 14, 1881, quoted in Rawle, ‘Some Contrasts,’ 3.

2. See footnote 5.

3. Goebel and Naughton, Law Enforcement in Colonial New York (1944) 16, 61; 23 New Jersey Archives (1901) xiv–xv; 1 Delaware Laws, 1700–1740 (1752) 297, 298.

4. Pennypacker, Morton, The Duke's Laws: Their Antecedents, Implication & Importance (New York, 1944)Google Scholar; Smith, J.H., Appeals to the Privy Council from the American Plantations (1950)Google Scholar.

5. Loyd, William H., The Early Courts of Pennsylvania (Boston, 1910) 13Google Scholar. Haskins, G.L. and Ewing, S.E., ‘The Spread of Massachusetts Law in the Seventeenth Century,’ 106 University of Pennsylvania Law Review 413 (1958)Google Scholar draws attention to the general problem (413–14) and emphasizes particularly the influence of Massachusetts on the codes of the colonies of Connecticut and New Haven (414–16).

6. Farrand, Max, ed., The Laws and Liberties of Massachusetts (Cambridge, 1929)Google Scholar.

7. See Haskins and Ewing, ‘The Spread of Massachusetts Law,’ supra note 5, 414-16.

8. A common failing of most historians has been their belief that a study of the early laws was beyond the scope of their particular topics. The result has been the assumption that the Duke of York's Laws, both in form and in substance, were strikingly similar to and certainly influenced by the provisions in the Massachusetts Code of 1648. See, for example, East, Frank M., Courts and Lawyers of Pennsylvania i (New York, 1922) 34Google Scholar; Morris, Richard B., Studies in the History of Anglo-American Law, with Special Reference to the Seventeenth and Eighteenth Centuries (New York, 1930) 39Google Scholar; William Loyd, The Early Courts of Pennsylvania, supra note 5, 9–13; Illick, Joseph E., Colonial Pennsylvania: A History (New York, 1976) 70Google Scholar. But see Beckman, Gail M., ed., The Statutes at Large of Pennsylvania in the Time of William Penn I (New York, 1976) 28–29Google Scholar. The latter is considerably more cautious in stating (page 29) that though Penn's laws followed the Duke's Laws ‘to some degree, [they] were more experimental, less detailed, and perhaps more imbued with a spirit of due process and “constitutional” rights. They were remarkably advanced for their time.’ A stronger dissent is that of Morton Pennypacker's The Duke's Laws, supra note 4, 30.

9. Beckman, The Statutes at Large of Pennsylvania, supra note 8.

10. Ibid. 28.

11. The version of the Massachusetts Code cited is that of Farrand, The Laws and Liberties of Massachusetts, supra note 6. The version of the Duke's Laws cited herein is that printed in Beckman, The Statutes at Large of Pennsulvania, supra note 8, 71. Some confusion remains regarding the most accurate version of the Duke of York's Laws. The 1879 publication, Charter to William Penn, which Rawle noted in his paper, Some Contrasts in the Growth of Pennsylvania and English Laws, supra note 1, contains a version of the Laws based upon a certified copy of the original manuscript and published in the Collections of the New York Historical Society in 1811. Beckman asserts in her Introduction that a copy she discovered in the Public Record Office in London is a ‘new and longer text… which differs materially… from the version published in 1879,’ and that it therefore represents the first complete text of the Duke of York's Laws. Beckman, The Statutes at Large of Pennsylvania, supra note 8, 6. Beckman's version contains seventy-six provisions; whereas the 1879 version has seventy-nine, but that discrepancy is explained by the latter's division of ‘Courts’ into three additional provisions. There are other differences in spelling and word variations. The primary difference between the two texts of the Laws appears to be a provision for ‘Distracted Persons’ in Beckman's version, which the 1879 publication does not include.

Both volumes include all the statutes enacted in Pennsylvania prior to 1700, but Beckman's also contains two versions of the Great Law of 1682. Of these, the ‘Longer Version’ of the Great Law, which contains seventy-one provisions is important because it includes ten provisions located by Marvin W. Schlegel in the 1940s which had been omitted from previous published editions. See Schlegel, , ‘The Text of the Great Law of 1682,’ Pennsylvania Magazine of History and Biography xi (1944) 276–83Google Scholar. Accordingly, and especially because of Beckman's inclusion of the ‘Longer Version,’ her work is the more reliable source. Nevertheless, the 1879 publication is still an important work whose value is enhanced by its two detailed and lengthy appendices: Appendix A, a ‘Compilation of the Laws and Ordinances establishing the Several Courts of Judicature of the Province of Pennsylvania,’ with an introduction by George (these laws were enacted after 1700), and Appendix B, ‘Historical Notes on the Early Government and Legislative Councils and Assemblies of Pennsylvania’ by Nead. None of the foregoing comments is intended to detract from the value of the up-to-date Beckman publication of the pre-1700 laws in one volume.

12. Haskins and Ewing, ‘The Spread of Massachusetts Law in the Seventeenth Century,’ supra note 5. A comparison of the Duke of York's Laws with the Connecticut Code of 1650 and the New Haven Code of 1656 reveals that Pennsylvanians were no more influenced by those codes than they were by the Massachusetts Code of 1648. See Trumbull, J. Hammond, ed., The Public Records of the Colony of Connecticut, 1636–1665 (Hartford, 1850) 509–63Google Scholar and Hoadly, Charles J., ed., Records of the Colony or Jurisdiction of New Haven, 1653–1665 (Hartford, 1858) 559–616Google Scholar.

13. There are in fact 123 provisions in the Massachusetts Code; but four have been deliberately excluded here because of their irrelevance to this study. Three of the four— ‘Ana-Baptists,’ ‘Ecclesiastically and ‘Jesuits’—pertain to religion and the churches in Massachusetts Bay, and the fourth— ‘Colledge’—deals with the affairs of Harvard College.

14. The fifty-five provisions, many of which are discussed at length below, include: Actions, Appeale, Appearance Non-Appearance, Arrests, Attachments, Ballast, Barratrie, Bills, Bond-slavery, Bounds of townes and persons, Burglarie and Theft, Capital Lawes, Cask & Cooper, Cattel Corn-fields Fences, Causes Small Causes, Charges publick, Children, Clerk of writs, Condemned, Constables, Conveyances fraudulent, Councill, Courts, Deeds and writings, Dowries, Escheats, Fornication, Forgerie, Fugitives, Strangers, Fyre, Impresses, Imprisonment, Indians, Inkeepers Tippling Drunkenes, Juries Jurors, Lands Free lands, Lying, Man-slaughter, Marriage, Masters Servants Labourers, Militaries Affairs, Payments, Pipe-staves, Prisoners Prisons, Records, Summons, Townships, Votes, Weights & Measures, Wills intestate, Witnesses, Wolves, and Wrecks of the sea.

15. These include: Absence, Administration, Amerciaments, Apprizement of Goods, Assizes, Attorney, Brewers, Burials, Chirurgions Midwifes Phistians, Defamation, Distracted persons, Fees, In What Cases it Shall Not Be Punishable to Remarry, Justice of the Peace, Officers & Offices, Orphans, Overseers, Possession, Publique Affairs, Sheriff, and Warrants. A discussion of many of these provisions appears below.

Although three additional provisions in the Duke of York's Laws—Horses & Mares, Lawes, and Saylers—are also not found in the Massachusetts Code, they did appear in the New Haven Code of 1656. The substantive provisions of ‘Horses & Mares’ and ‘Lawes’ are somewhat similar, but ‘Seamen & c’ in the New Haven Code imposes a penalty on sailors who assist colonists attempting to flee the colony for failure to pay their debts while ‘Saylers’ in the Duke of York's Laws deals with the problems resulting from sailors'drunkenness. See Trumbull, The Public Records of Connecticut, supra note 12, 590–91, 597, 608, and Beckman, The Statutes at Large of Pennsylvania, supra note 8, 92, 96, 104.

16. These categories are somewhat arbitrary and overlapping, yet in view of the often indistinct separation of titles in the provisions both in the Massachusetts Code and in the Duke's Laws, they provide a useful outline.

17. Beckman, The Statutes at Large of Pennsylvania, supra note 8, 97.

18. See Haskins, G. L., ‘A Problem in the Reception of Common Law Dower in the Colonial Period,’ 97 University of Pennsylvania Law Review 842 (1949)Google Scholar. In England at common-law dower did not attach to revisions and remainders until they had vested in possession.

19. Farrand, The Laws and Liberties of Massachusetts, supra note 6, 17–18; Beckman, The Statutes at Large of Pennsylvania, supra note 8, 88.

20. Farrand, The Laws and Liberties of Massachusetts, supra note 6, 30; Beckman, The Statutes at Large of Pennsylvania, supra note 8, 93.

21. Farrand, supra note 6, 6; Beckman, supra note 8, 102–3.

22. Farrand, supra note 6, 44; Beckman, supra note 8, 103.

23. Farrand, supra note 6, 23–24; Beckman, supra note 8, 91–92.

24. Farrand, supra note 6, 38–39; Beckman, supra note 8, 98.

25. Farrand, supra note 6, 21, 53–54; Beckman, supra note 8, 72 74.

26. Beckman, supra note 8, 102.

27. Farrand, supra note 6, 4; Beckman, supra note 8, 78–79.

28. Farrand, supra note 6, 6–8; Beckman, supra note 8, 80–82.

29. Farrand, supra note 6, 32; Beckman, supra note 8, 96.

30. Beckman, supra note 8, 103–4.

31. The exception was ‘Ballast,’ which is identical to the Massachusetts provision except that a constable and two overseers replaced the selectmen as the authority governing the section. Farrand, supra note 6, 3; Beckman, supra note 8, 78.

As indicated in footnote 15, although Horses & Mares and Saylers are not among the provisions in the Massachusetts Code, they did appear in the New Haven Code of 1656.

32. Farrand, supra note 6, 4; Beckman, supra note 8, 78.

33. Farrand, supra note 6, 28; Beckman, supra note 8, 92–93.

34. Farrand, supra note 6, 28–29; Beckman, supra note 8, 94.

35. Farrand, supra note 6, 39–43; Beckman, supra note 8, 98–101.

36. Farrand, supra note 6, 51–53, 54, 55; Beckman, supra note 8, 105–7.

37. Beckman, supra note 8, 79.

38. Ibid. 88.

39. Farrand, supra note 6, 4; Beckman, supra note 8, 78.

40. Farrand, supra note 6, 9–11; Beckman, supra note 8, 76.

41. Farrand, supra note 6, 9–11; Beckman, supra note 8, 83–85.

42. Beckman, supra note 8, 89–91.

43. Farrand, supra note 6, 46–47; Beckman, supra note 8, 79.

44. Farrand, supra note 6, 46–47; Beckman, supra note 8, 104.

45. Farrand, supra note 6, 13–14, 16; Beckman, supra note 8, 86–87.

46. Farrand, supra note 6, 2; Beckman, supra note 8, 74.

47. Farrand, supra note 6, 13; Beckman, supra note 8, 85–86.

48. Farrand, supra note 6, 14, 51; Beckman, supra note 8, 88, 105.

49. Farrand, supra note 6, 50–51; Beckman, supra note 8, 105.

50. Beckman, supra note 8, 71, 74, 95–96, 101–2, 104, 105.

51. Farrand, supra note 6, 3–4, 23; Beckman, supra note 8, 78, 91.

52. Haskins, G.L., Law and Authority in Early Massachusetts (New York, 1977) 137Google Scholar.

53. Farrand, supra note 6, 4; Beckman, supra note 8, 80.

54. Farrand, supra note 6, 5–6; Beckman, supra note 8, 80.

55. Farrand, supra note 6, 37; Beckman, supra note 8, 76.

56. Farrand, supra note 6, 22–23, 35–36; Beckman, supra note 8, 91, 96–97.

57. Farrand, supra note 6, 1; Beckman, supra note 8, 71–72.

58. Farrand, supra note 6, 2, 31–32, 54; Beckman, supra note 8, 74–75, 95, 106.

59. Farrand, supra note 6, 8–9, 14–16; Beckman, supra note 8, 82, 87–88.

60. Beckman, supra note 8, 75, 77, 105.

61. Farrand, supra note 6, 2–3, 49, 12–13, 28, 43–44, 45; Beckman, supra note 8, 75–76, 77, 78, 87, 102, 104.

62. These include: Age, Abilitie, Bakers, Benevolence, Criminal causes, Cruelties, Damages pretended, Death untimely, Deputies for the Generall Court, Distresse, Drovers, Elections, Farms, Fayrs & Markets, Ferries, Fines, Fish Fisher-men, Freemen, Gaming, Generall Court, Governour, Heresie, Hydes & Skins, Hygh-wayes, Idleness, Imposts, Inditements, Justice, Leather, Levies, Liberties Common, Magistrates, Marshal, Mills Millers, Monopolies, Oath subscription, Oppression, Poor, Pound, Pound breach, Powder, Prescriptions, Profane swearing, Protestation contra Remonstrance, Punishment, Rates Fines, Replevin, Schools, Secresie, Secretarie, Ships Ship-masters, Suits, vexatious suits, Strangers, Swyne, Tile-earth, Tobacco, Torture, Treasure, Trespasse, Tryalls, Usurie, Watching, Wharfage, Workmen, and Woods.

63. Farrand, The Laws and Liberties of Massachusetts, supra note 6, 3; Beckman, The Statutes at Large of Pennsylvania, supra note 8, 148.

64. Farrand, supra note 6, 16, 22–25, 32, 34, 36, 43–45, 49, 51; Beckman, supra note 8, 150, 179, 180, 182, 183–84, 185, 187, 194, 198, 201–2, 209, 218–20, 224, 226, 239.

65. Farrand, supra note 6, 24, 35; Beckman, supra note 8, 124, 128, 136, 145, 151, 179.