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


I. Early Constitutionalism in America
a. Time line
i. 1603 Elizabeth I, daughter of Henry VIII, dies childless; James Stuart, a Protestant,takes the English throne as James I.
ii. 1607 Jamestown, Virginia, becomes the first permanent English settlement in America.
iii. 1619 First African slaves arrive in Virginia.
iv. 1620 The Pilgrims, English Puritan separatists, emigrate to American and found the Plymouth Colony. The Massachusetts Bay Colony is founded soon thereafter by another group of Puritans headed by John Winthrop.
v. 1625 James I dies; his son Charles I succeeds to the throne and rules without Parliament from 1628-40. Sharp reduction in civil and religious liberties leads to large-scale immigration to America.
vi. 1635 Roger Williams is banished from Massachusetts for his views on religious liberty and establishes Providence in what is now Rhode Island.
vii. 1637 Anne Hutchinson is banished from Massachusetts after being convicted of sedition for her dissident religious views and moves to Rhode Island.
viii. 1642 English Civil War breaks out over conflict between Charles I and Parliament.
ix. 1649-60 Charles I is tried for treason and executed. With the monarchy abolished, England is governed as a Commonwealth. Oliver Cromwell, leader of the parliamentarian forces, is installed as Lord Protector and rules until his death in 1658. He is succeeded briefly by his son, but the Commonwealth soon collapses. Puritan emigration to America largely ceases.
x. 1660 Charles II, son of Charles I, is restored to throne of England.
xi. 1681 William Penn, an English Quaker leader, founds Pennsylvania as a haven for Quakers, who had been subject to religious persecution.
xii. 1685 Charles II dies; James II, brother of Charles II and son of Charles I, succeeds to throne. Unlike the other Stuart kings, who were Anglican, James II is a devout Catholic and attempts unilaterally to remove religious disabilities on Catholics that had been imposed by Parliament.
xiii. 1688 The Trial of the Seven Bishops further destabilizes James II’s reign, and he is soon forced to flee England. A coalition of Whig nobles invites William of Orange and his wife Mary to take the English throne, in an event termed the “Glorious Revolution.”
xiv. 1689 William and Mary are granted their crowns by Parliament. The English Bill of Rights and Toleration Act are adopted.
b. The Magna Carta & English BOR: The “Ancient Rights” of the English People – during the conflict with England that led to the American Revolution, American colonists frequently asserted their “ancient rights” as English people. This is because most of the settlers were Englishmen who thought of themselves as citizens of England living outside the mother country.
i. Magna Carta (1215)
1. Creation: King John I (bad king; tyrannical; the people (nobility) thought he took prerogatives he was not entitled do. The nobility/leading barons took him out to Runnymede and forced him to sign the document
2. Rights Created:
a. Established the courts, grand jury (as opposed to king making all decisions); King was to be subject to the law just like all subjects (this was novel and a big deal; not uniformly accepted by Kings); due process
b. Was really created to protect the nobility – particularly their property from the king, but since the language was more open-ended, it was interpreted to cover all Englishmen
3. Significance: the importance of the Magna Carta is really the mythology behind the document; the idea that the English people love their rights and if a tyrant comes up and tries to take their rights; they will rise up against him
a. English fought civil wars for their rights – during 1600 the Stuart line of kings did not feel that the law applied to them; Stuart monarchs insisted that “the monarch is the law, the king is the law speaking”; opposing this was Sir Edward Coke, Chief Justice. Eventually civil unrest about the law and taxes leads to civil war à Charles I loses and loses his head
b. This is the idea that English brought over with them; this is the idea that inspired the Revolution
ii. Bill of Rights 1689
1. Stuart kings continued to be impossible with Charles II, leads to people rising against him and kicking him out; seek to replace him with William of Orange (Dutch), but before they would accept him as King unless he signed the BOR prepared by Congress. Rejected the idea of royal absolutism
a. See Parliamentary supremacy on the rise
b. Created rights such as:
i. Due process of law, head of govt is bound by the law; right to petition the king; right to have a standing army; right to bear arms; right to elections; right to free speech; right to jury trials
ii. Right of opposition (greatest right – meaning if the govt is not respectful of our rights, we can overthrow it and start over again – this was very much the English mentality)
c. Support for these rights came from the people who were stirred/moved by the popular writings of John Locke
2. Significance: very influential on American people; was the direct forerunner for our constitution
iii. Bottom Line: Tyranny v. Liberty – The English would always fight the govt for liberty
c. Religious Intolerance: Many early settlers left England to avoid civil strife and/or religious persecution. Their experiences in England greatly affected the development of law in the colonies.
i. English BOR Missing One Key Item: Religious freedom
1. Persecution is one of the main reasons why people fled England. During this period of time, religious freedom did not exist, there was only one religion: Catholicism or Protestantism – depending on the monarch, it would flip back and forth
2. Timeline of religious flip-flop
a. Henry VIII – opposed Catholic church b/c it would not allow him to get divorced; created Church of England (Puritans) who followed teachings of John Calvin
b. King Edward VI – sympathetic to religious dissenters, but died too soon to make a difference
c. Queen Mary – “Bloody Mary” – daughter of Henry VIII and Catherine of Aragon; killed all religious dissenters
d. Good Queen Elizabeth I – short time of religious freedom
e. King James VI of Scotland – persecuted religious dissenters; led to the flight of many Puritans to America
ii. During this period, competing notions of theocracy and tolerance emerged
1. Many colonies were set up practically as theocracies to be safe havens for those fleeing England
2. Conflict b/w Theocracy & Tolerance:
a. Theocracy: MA Bay Colony saw church and state fused as one and it is the duty of all to carry out the law of God; the govt must carry out God’s will
i. Even though they just escaped persecution, they did not believe in religious freedom
ii. Individual v. community interests was constant struggle; they emphasized the community over the individual;
1. John Winthrop “A Model of Christian Charity” gave speech on the Arabella called the City Upon a Hill Speech – basic thrust was the community must come before the individual
b. Tolerance: Roger Williams (RI) & William Penn (PA) – set up colonies where religion would be tolerated; set up in direct opposition/response to the intolerance of the Puritan colonies
i. Roger Williams was a minister who fought against people like Winthrop and fought for individuality
ii. Argued for the separation of church and state; didn’t like the idea of the govt using the image of Christ for itself and thrusting it upon the people
iii. RI was purchased by Williams (was not a colony with a governor appointed by the crown)
iv. PA was purchased too by Penn; Charles II granted a charter to a group of proprietors who wanted to create a haven for religious dissenters
3. Differences in the kinds of colonies drove what colonies people would go to; like-minded people tended to settle together. Eventually, overtime, theocracy govt began to wither away
iii. What Relevance does the colonial religious experience have on the modern interpretation of the Constitution?
d. John Locke: John Locke’s ideas on government were enormously influential, both in his day and during the Revolutionary and post-Revolutionary period.
i. Locke’s Ideas
1. Locke wrote to justify the actions of the English people when they overthrew the Stuarts; however he wrote in abstraction, he did not come right out and say that the people were just to overthrow the tyrannical king
2. Idea of Natural Rights: All men are equal; all men have the ability and right

ay laborers and hired farm hands; Closer to a slave in status than an apprentice
6. Harshly treated, especially in the South; led to lots of runaways and subsequent harsh laws regarding runaways, usually leading to extensions in servitude time and whippings
7. South Carolina Servant Regulations 1761
a. Recapitulates the statutory basis of servitude
b. Come into indentured servitude when you cannot afford the ship ride over here; sold into indentured servitude to pay your way
c. Some rights – sufficient diet, clothing, lodging; punishment should be in moderation with the crime
d. Traveling and running away – restricted in how far away they could travel without a note from their master; running away was punishable (corporal)
e. Upon expiration of servitude – few more rights to a coat and proper clothes
vi. Children
1. Local governments intervened on the welfare of children in cases of suspected neglected children; these children would be bound out into apprenticeship
2. Children’s education in Plymouth
a. Teach the kids how to read the scriptures and Bible and knowledge of the capital laws
b. Parents should bring up their children to learn some profitable trade or calling. If parents fail to do this and raise barbarous, rude and/or stubborn children, the parents shall be fined ten shillings and more for each offense
vii. Apprentices
1. System was used to provide training to poor children and orphans. When parents could not support their children, they would bind them out as an apprentice to someone like a blacksmith.
2. This was used as a means of social control; it was a form of compulsory education
3. Had a higher status than a slave or indentured servant; the law did provide special rights and protections for apprentices, but it was hard to find a judge that would actually enforce the law.
4. Virginia Apprenticeship Statute 1646 – Talked about how apprenticeships improve the honor of the country and their parents; Kids 8 and up will be given a job (knitting, carding, spinning) and take are of them; food, shelter, etc; only applied to kids who are so impoverished their parents cant educate them
viii. Poor whites (non-landowners)
1. An Act for the Relief of the Poor – 1742
a. This was modeled after the Poor Laws enacted in England during time of Elizabeth I. British colonies did try to provide for the relief of poor, disabled and infirm where their families could not provide for them
b. Provided for appointment of overseers of the poor in every parish. Allowed them to bind children to apprenticeships and poor married and unmarried people to engage in daily trade life to earn a living. Parishes could raise taxes in order to cover costs
2. Reality: These laws were not really as helpful as they sound. Poor people were almost branded with a “P” At times, being poor was almost criminalized
3. Politically powerless because they did not have property
b. Changes during the Colonial Period: The Colonial period was over 150 years; it was hardly a monolithic period. Overtime, the law changed with respect to: (1) criminal law, (2) sexual morality, (3) economic regulations and property rights, (4) religion and (5) family relations. Dale’s laws (1611) and the Laws and Liberties of MA (1648) are good examples
i. The VA Colony and Dale’s Laws
Background on VA Colony & Making of Dale’s Laws: Virginia colony was organized as a joint stock company; created by investors