THE COMMON LAW IN COLONIAL AMERICA: VOLUME I: THE CHESAPEAKE AND NEW ENGLAND, 1607-1660
by William E. Nelson. New York: Oxford University Press, 2008. 216pp. Hardback. $35.00/£18.99. ISBN: 9780195327281.
Reviewed by George W. Liebmann, Liebmann and Shively, P.A. of Baltimore and Visting Fellow of Wolfson College, Cambridge. Email: george.liebmann2 [at] verizon.net.
This slender volume by an outstanding scholar of colonial law sheds much light on continuing differences in legal and political culture among states on the Atlantic seaboard. It begins with the conventional premise that “Virginia was founded primarily for economic profit; New England, primarily to create a religious utopia; and Maryland, primarily to provide a haven for persecuted Roman Catholics.” As a result, Virginia law began as a body of coercive statutes (Dale’s Laws of 1611), replaced by a new codification 1n 1650 designed to enforce and extract labor; New England law was founded on views resembling the Protestant approach to the Bible, in which pre-existing English texts were of limited importance; while the Catholic minority in Maryland consciously adopted English common law to provide a fixed standard to shield a religious minority from future majority oppression. Virginia ultimately turned toward the English common law to provide assurance to providers of capital and because the colony could no longer be governed on a military command system.
Virginia was colonized by single male immigrants, many from the lowest rungs of society inhabiting widely dispersed homesteads; the New England colonies were settled by family groups required to live in towns in proximity to their church. The New England colonies resorted to statutory codifications to provide certainty. Virginia substantive law centered on debt collection; New England law, on community self development. The New England codifications tended to omit contract law, as in the Massachusetts codification of 1648; juries were relied on to curb the arbitrariness of magistrates. The master servant law of Virginia was far more severe than that of New England.
The Maryland Act of Religious Toleration of 1648 was designed to safeguard minorities; it was set aside during a period of later Puritan rule. The jury attained great importance in Maryland. In Maryland, the common law was adopted by statute no later than 1639. The tobacco economy caused Maryland master servant and debtor creditor law to evolve in the direction of Virginia’s laws, although by the time of the Civil War, 50% of Maryland’s blacks, but only 20% of Virginia’s had been freed. As Nelson notes, these origins “gave the law of those regions distinctive characteristics that would persist for years to come.”
Maryland is still in many ways a common law state; despite attempts in the 1870s and again in the 1970s, it has [*149] never adopted a codified criminal law, and a 1904 treatise (Hochheimer 1904) is still in use in many Maryland prosecutors’ offices, although there have been partial codifications, as with the law of theft. This sometimes produces amusing results; a pair of Maryland cases in the 1960s applied, with the benefit of much learning, the principle that a church, as ‘the dwelling house of God’ was within the common law definition of burglary, “breaking and entering a dwelling house in the night time with intent to commit a felony (MCGRAW v. STATE, 1964; DORTCH v. STATE, 1967).
Maryland lawyers until about thirty years ago had in their offices two thick volumes (Alexander 1912) which contained the pre-revolutionary British statutes found to have met the standard still embodied in Article V of the Declaration of Rights in Maryland’s still extant 1867 Constitution: “the Inhabitants of Maryland are entitled to the Common Law of England, and the trial by Jury according to the course of that Law, and to the benefit of such of the English statutes as existed on the Fourth day of July, seventeen hundred and seventy six; and which, by experience, have been found applicable to their local and other circumstances.” As recently as 1966, the reviewer litigated a substantial landlord tenant case turning on interpretation of two seventeenth century English statutes. Chapter 12 of the Maryland Acts of 1974, enacted by section 14 115 of the Real Property Article, lists no fewer than 80 English statutes declared to be no longer applicable in light of the 1974 codification of Maryland real property law, the earliest of them being 9 Henry III, Ch.7 (1225).
Maryland also retains a considerable attachment to the jury system, and has preserved twelve member unanimous verdicts in criminal cases. Its Constitution contains a provision (Article 23 of the Declaration of Rights) making the jury judge of the law as well as the facts in criminal cases, the effect of which has been curtailed by judicial decision but not by amendment, a pity in light of current abuses of drug possession laws.
Virginia, by contrast, has a dizzying variety of jury statutes, some allowing majority verdicts and some allowing juries as small as five members (59 F.R.D.180, 1972).
Mr. Jefferson, although a Virginian, saw to it that the New England township system, complete with its reservations of land for schools and churches, rather than the large counties of Maryland and Virginia, provided the basis for local government in the Northwest Territory, an enormous service to both local government and public education in the upper Midwest, the suburban and rural areas of which are not afflicted with the huge bureaucratic school systems characteristic of Maryland and Virginia.
The Catholic/Protestant condominium resulting from the Maryland Statute of Religious Toleration also had a long and peculiar life. In 1915, when it was proposed to erect a statue commemorating the enactment, including figures of a puritan, a priest, and a cavalier, Cardinal Gibbons protested against this piece of sentimentality; he declared that Lord Calvert, and Calvert alone, was responsible for the policy of toleration, an accurate historical estimate. The list [*150] of Maryland Attorneys General which appears in the front of each volume of the Reports of the Attorney General of Maryland notes the religious affiliation of each attorney general appointed between 1657 and 1777 (citing Owings1953; 2004). Jewish emancipation in Maryland was accomplished in 1826, but religious test oaths for officeholders survived until the US Supreme Court decision in TORCASO v. WATKINS (1961), and those for jurors, until the decision of the Maryland Court of Appeals in SCHOWGUROW v. STATE (1964). Maryland was the last state to authorize civil marriages. In 1860, when the Baltimore City police force was reorganized in reaction to the ethnic strife of the Know Nothing period, a practice began of alternately appointing Catholic and Protestant patrolmen, which did not end until the appointment of Police Commissioner Donald Pomerleau in 1966.
The New England states are peculiar in that in several of them, judges are given life tenure, as in the English practice; the powers of the legislature as much as juries were relied upon to prevent abuse. Thus, Nelson’s succinct and lucid work is of considerably more than antiquarian interest, but contributes to an understanding of the roots of our institutions and the different courses on which they might have developed.
Alexander, Julian J. (ed.). 1912. BRITISH STATUTES IN FORCE IN MARYLAND. Annapolis: Maryland State Archives.
Hochheimer, Lewis. 1904. LAW OF CRIMES AND CRIMINAL PROCEDURE. Baltimore: Baltimore Book Co.
Owings, Donnell M. 1953/2004. HIS LORDSHIP’S PATRONAGE. Baltimore: Maryland Historical Society; Annapolis: Maryland State Archives.
MCGRAW v. STATE, 234 Md. 273 (1964).
DORTCH v. STATE, 1 Md. App. 173 (1967).
SCHOWGUROW v. STATE, 240 Md. 121 (1964).
THE SIX MAN JURY: A DISCUSSION BEFORE THE JUDICIAL CONFERENCE OF THE FOURTH CIRCUIT, 59 F.R.D.180 (1972).
TORCASO v. WATKINS, 367 U.S. 488 (1961)
© Copyright 2009 by the author, George W. Liebmann.
Labels: Vol. 19 No. 2