Law in Colonial America
Settler and Indian Views of Land • Simplifying Property Law •
Personal Status: Women • Laborers • Slaves • Religion •
Criminal Law • Lawyers and Practice • The Privy Council
and Imperial Courts • Witchcraft and Press Freedom • For
THE THEME OF American law in the colonial period is change, as the needs of a rapidly growing frontier society adapted the English heritage to meet new conditions. Changes took place in all areas, ranging from property to personal status, reflecting the social, economic, and political transformation of the colonies. By the eve of the American Revolution, the legal systems of the thirteen colonies, although reflecting their common English origin, had evolved along distinctly American lines.
The colonies also laid the groundwork for the creation of constitutional government in the late eighteenth century. Struggles between colonial governors and popularly elected assemblies led to an almost innate sense among Americans of the need for separation of powers. The arbitrary removal of judges by high-handed royal governors helped lay the groundwork for a constitution that made judges immune from political pressures. The excesses of the Salem witch trials in the 1690s were sometimes mentioned in the debates over the Constitution in the late 1780s, when Americans demanded a bill of rights that protected fundamental due process in criminal trials. The Antifederalists who demanded a bill of rights, and the Federalists in Congress like James Madison who wrote the Bill of Rights, drew on many more immediate sources in creating a system of due process. But, at least some of the participants in this debate recalled the witch trials, using them to illustrate an extreme example of the dangers of law and order without due process. Similarly, the attempt of the royal governor of New York to suppress the colonial newspaperman John Peter Zenger was remembered during the Revolution and during the debate over the Constitution, as Americans argued for explicit protections for a free press. The evolution of religious diversity in the colonies, which was deliberate in some places—like Rhode Island, Pennsylvania, and South Carolina—and accidental in others—like New York—set the stage for a constitution that prohibited religious tests for office holding and for a bill