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American Legal History
Villanova University School of Law
Lanctot, Catherine J.


Professor Lanctot – Fall 2014


A. Early Constitutionalism in America

1. Ancient rights that American Colonists asserted as English People à Magna Carta and Bill of Rights

a. Due process of law (Magna Carta)

b. Right to a grand jury (Magna Carta)

c. No excessive punishment

d. Right to practice certain religions

e. No taking of property (English Bill of Rights)

f. Fixed meeting of courts

g. Right to petition government (English Bill of Rights)

h. Right to freedom of speech, and debates or proceedings in Parliament (English Bill of Rights)

2. Religion in colonial society – persecution v. tolerance

a. Maryland Toleration Act: “allowed” religious freedom, but tolerated only Trinitarian Christians – anyone speaking against Jesus as son of God subject to fines

b. Rhode Island: Roger Williams banished from MA, didn’t want church in politics because feared corruption of church, didn’t want people forced to go to church

i. Roger Williams to the Town of Providence

1. People not exempt from civic obligations on basis of religion

2. Need to let all people worship what they please, can’t force anyone to join or stop a religion

c. Massachusetts: complete entwinement of church and state

3. Early forms of government

a. Mayflower Compact: concept of majoritarian rule, laws for the good of the colony

b. Rhode Island: majoritarian, took laws of England as necessary, only those that applied to them

i. Roger Williams, “The Bloody Tenent of Persecution for Cause of Conscience”

1. Government should follow general rules of the Bible, religious laws can still be civil laws

2. Civil officers should be elected to execute laws

3. Sovereign power is with the people, they can form whatever government they feel is best

4. Governments are most effective when people consent to them

5. Separation of church and state

6. Religious freedoms à preserve the lasting peace

ii. Rhode Island Patent

1. Settlers had full powers of self-government

2. Autonomous quasi-commonwealth (Crown didn’t elect Gov.)

3. Full religious liberty for all, no established church, expansive right of suffrage not tied to religion

c. William Penn, Frame of Government

i. Representative legislature: once a year election, staggered terms, term limits

ii. Checks and balances: rotation of offices, supermajority for amending frame of government

iii. Popular virtue in sustaining free government

d. John Winthrop, City on a Hill

i. Primacy of community over individual interests à unity

ii. Model of Christian living

e. New York, Charter of Libertyes

i. Petit and grand juries of peers, religious toleration, “due course of law,” bail allowed

ii. No taxation without consent à only by act of governor and representatives can tax be imposed

iii. Never became law

4. John Locke, The Fundamental Constitutions of Carolina (1669)

a. Hierarchy of landed, hereditary nobility

b. Provided religious liberty for all colonists

c. Guarantee of civil liberty

d. Parliament: every member has one vote

5. John Locke, Treatise on Civil Government (1690)

a. ***Basis for modern theories of democratic government

b. Men are born free, enjoyment of all rights and privileges, all equal, free from impediments

c. Men join society to better preserve their property by establishing laws, indifferent judges to execute the laws, etc.

d. When government was created, men gave up individual rights and gave some to central government to protect against deprivation

e. Idea of consent: people give consent to be governed, so government has authority to protect life, liberty, and property

f. Government must make laws for the good of the people. If they don’t, government has forfeited their authority

g. Authority of government flows from consent of the governed, some document gives certain authority

h. People have the right to alter or remove legislature when they find that the legislature has acted contrary to the trust reposed in them by the people

i. Early colonial documents deal with the notion that people voluntarily join society under collectively beneficial laws

6. Reception of English Law was an Important Issue for the Colonists

a. Colonists carried with them only so much of the English law is was applicable to their own unique situation and condition

b. Common law of England has no authority

c. Colonists have no obligation to accept all laws

7. Colonial Documents

a. Aspects which reappear in the Constitution

i. Guarantee of civil liberty

ii. Religious freedom

iii. Separation of church and state

iv. Balancing forces in government

v. Jury of peers

b. Aspects which were peculiar to the early colonial period

i. Slavery

ii. Monarchy

B. Law in Colonial Society

1. During the Colonial Period à changes in criminal law, sexual morality, economic regulations and property rights, religion, and family relations

2. The Virginia Colony

a. Charter for corporation came from king, originally a huge failure

b. Dale’s Laws (1611) (Jamestown, VA)

i. Enacted before tobacco as a cash crop, representative legislature

ii. Quasi-military code à wants to stabilize the colony

iii. Lacks a judicial system

iv. Divine and Moral Laws: regulate economic, political, and religious life, prevent settlers from leaving without permission

1. Considered to be embedded consent: people had given authority and consented to laws

2. Rules designed to maintain survival and economic viability

v. Marshal Laws: very harsh, physical punishments

vi. Counterproductive ànot enticing people to come

3. Massachusetts Bay Colony

a. The Laws and Liberties of Massachusetts

i. Complete intertwinement of church and state

ii. Sexual morality, attempts to control sexuality – small number of women

1. Forced to get married or killed

iii. Regulated civil recreation, made people go to church

iv. Punishments were harsh, based on religion and necessity

v. More judicial process established à procedural rather than military justice

vi. Focused more on building a sophisticated religious society

1. Dual authority

2. Common purpose/mission

b. Case of Bestiality in Plymouth

i. Colonists breaking moral laws, evils discovered by due search

ii. “One wicked person may infect many,” they can tell each other how to do wicked things

iii. Worried laws are not effective, devil is taking aim at colony

4. Sources of law in America

a. Drew on English local and customary law, constantly adapting to circumstances and physical geography of New World

b. Colonies borrowed from one another’s laws

c. No obligation to take all of English law

d. William Blackstone

i. Colonists only take English law that is applicable to their situation, what’s necessary and convenient

ii. Mother country should have control over what laws are used and their constitution

e. Giddings v. Brown: any law that infringes on the fundamental law of God and nature is void

5. Societal Classes à law may limit life based on these statuses

a. Single women

i. Not educated and few employment opportunities à domestic servants

ii. Coul

and generally applicable law that is not usually enforced, enforced strictly, or enforced with a strict punishment, except against political opponents of the state or the government

2. Anne Hutchinson (1637)

a. Accused of gathering women in her home, teaching them different things about the bible

b. Wanted to force her to stop speaking out against the clergy

c. Governor and judge are same person

d. Objective? Religiously compelled? Telling truth “by divine revelation…”

e. Banished from Massachusetts

3. Salem Witch Trials (1692)

a. 150 accused, 19 hanged, 1 pressed to death

b. Used “spectral evidence” – testimony of the afflicted about supernatural apparitions

i. Only needed one witness for a witch trial

ii. Prior inconsistent statements go to credibility

c. Burned witches convicted of practicing magic, for the good of society

d. Started with a group of teenage girls who claimed they were bewitched

e. Reflect the primacy of law and justice in the community

f. Reflects breakdown in the legal system à procedural issues

g. No distinction between religious and legal authority à comingled

h. Increase Mather, “Cases of Conscience Concerning Evil Spirits Personating Men”

i. Attacking use of spectral evidence, brought end to trials

1. Use of 2 credible witnesses to affirm

2. Free and voluntary confession after examination

ii. Better to protect lives of the innocent and let the guilty escape than to punish the innocent

iii. Recounts what is sufficient proof to show someone is a witch: free and voluntary confession, or if two credible people confirm it

iv. Rudimentary notions of due process

i. Cotton Mather, The Wonders of the Invisible World

i. Conviction must follow from proof, not just a presumption

ii. Must have witnesses

j. Shows the early forms and importance of due process for the accused

k. Reflects the legal system to achieve legitimate ends à but this was clouded by religious fears

i. Paranoia over attacks

ii. Takes on life of its own

iii. Difficult to dissent

l. Political trial à question about providing rights to disfavored people

4. John Peter Zenger (1735)

a. Tried for seditious libel in NY for publishing unflattering comments in newspaper about NY’s Governor

b. English law of seditious libel àtruth of the article was no defense

c. Attorney Hamilton argued Zenger should be acquitted because what he said was true and there’s no king here: political precedent that Americans should be free to criticize rulers and leaders à jury nullification

d. Chief Justice didn’t allow argument, but jury nullified even though he was clearly guilty

e. Not just English citizens anymore à English law is no longer suitable for our place and time

i. This idea is shared throughout the Revolutionary Period

f. Trial transcript disseminated, gained popular support à ideas resonate throughout the period