Colonial Legal System in United Kingdom
Women in the Colonial Legal System
Social necessity also gave shape to the legal position of colonial women. English society placed married women on a pedestal, but it imposed significant legal disabilities in return. The principal legal doctrine affecting women was coverture, the condition into which women passed when married. It merged two individuals into one, and the person who remained was always a man. The woman’s legal existence essentially disappeared, with her property rights passing to her husband. She could not make contracts or sue in court. The social insistence on protecting women reached extraordinary conclusions. If a woman committed a crime, the law assumed that she had done so under her husband’s coercion. As a result, husbands were tried for the crimes of their wives, even to the absurdity of whipping and fining husbands whose wives had committed adultery.
Single English women enjoyed fuller rights, but they were also vulnerable to the rigors of a male-dominated society. They could own property, engage in contracts, and conduct businesses, as well as sue and be sued. Even the position of single English women during the eighteenth century became increasingly tenuous, as the rise of capitalism brought with it legal disabilities that favored males over females in business and the professions.
Colonial Americans modified this carried legal tradition in ways that offered women somewhat greater freedom, although women clearly remained legally dependent. The simple agrarian conditions of the seventeenth century revived the function of the family as the unit of production, placing greater economic responsibility on married women and enlarging their legal personality. Early America had no leisure class, and society could not afford to restrict the activities of willing and able workers. Both married and single women also engaged in every business open to men from apothecary to undertaker.
Colonial law offered incentives for such cooperation. The practice of dower in England, for example, provided that the wife was to receive one-third of her husband’s real property upon his death. The English erected a host of legal barriers that often frustrated the purpose of dower. In New England, however, the magistrates recognized the plight of widows in the middle and upper classes, and courts took it upon themselves to increase the wife’s share where they deemed it appropriate. Widows also benefited indirectly in the Chesapeake and southern colonies by the provision that slaves could be counted as part of a dower, thus giving women extra flexibility in adjusting resources to meet their changing economic needs.
The theory of coverture created the same legal disabilities in colonial America as in England, but colonial courts and legislators modified it in ways that produced a less authoritarian model. The simplification of justice in early New England made it easier in practice for married women to assert some limited legal personality. Women, for example, not just in New England but in the other colonies, often served as attorneys in the absence of their husbands. While this practice had precedent stretching back into feudal times, it was apparently practiced much more regularly in the colonies. Maryland was the only colony to prohibit it, and Governor Fendall did so because of what he perceived as the abuses of women coming to court claiming that “shee had a Letter of Attorney from her husband to doe any business whatsoever.”15 The colonies also counted married women as separate individuals and gave them grants of land. Women sued in their own names and they acted on their own in contract and tort claims, both significant departures from the common law tradition.
Some American courts also embraced the practice of separate estates, through which married women owned and controlled property independently of their husbands. These separate estates were an attempt by women, despite coverture, to retain a legal claim to property that they either had before marriage or earned while married. The common law courts typically refused to uphold these agreements, because they were deemed to violate coverture; equity courts, however, did sustain them. Thus, in the colonies, “tremendous variation [was] evident in early American rules on married women’s property rights. . . .” In those colonies ( New York, Maryland, Virginia, and South Carolina) with equity courts, married women attained more independence than in those jurisdictions with only common law courts or with courts that blended both forms of jurisdiction.
Women’s active economic roles enabled them to have a modicum of political power. On the eve of the Revolution, only Pennsylvania, Delaware, and South Carolina had laws disfranchising women who otherwise met the property and residency requirements. Custom and cultural assumptions, not law, were the most significant limitation on the participation of women in politics. The notion of deference pervaded colonial America, and men, not women, were viewed as society’s natural leaders. Richard Henry Lee paternalistically admonished his complaining sister that women had “as legal a right to vote as any other person,” but that they too often lacked the initiative to do so.
Although women did not hold office, they were involved extensively in extralegal political conduct. Women joined and led mobs, and their actions were often decisive– even deadly. In Marblehead, Massachusetts in 1677 during King Philip’s War, a mob of women attacked and murdered two Indian captives, stoning their white male protectors while “seizing [the Indians] by the hair. . . . Then with stones, billets of wood, and what else they might, they made an end of these Indians.”
Colonial women appear to have benefited from a significant divergence from the application (if not the letter) of divorce law in England. English law treated marriage as a sacramental act, and this view was carried over into the southern colonies. In New England, however, marriage had a stronger secular contractual base, and it might be expected that acts of nonperformance such as desertion or cruelty would have been grounds to void it. Such was not the case, because colonial law made the sexual definition of marriage its essence and, in the absence of ecclesiastical courts, colonial civil courts considered sexual incapacity or illicit practices as the chief basis for its dissolution. But where divorce through parliamentary legislation had been available in England only to very rich men, in the colonies a few women from a wide social spectrum won divorce through court proceedings. A laborer, a poor woman, and a black servant, for example, all gained freedom from their husbands in Massachusetts during the eighteenth century.
Colonial women had “equality of function and dependency of status.” 19 They typically suffered the brunt of punishment for fornication and adultery. Men were far more successful in obtaining divorces, and they enjoyed economic independence, political and religious leadership, greater literacy, and greater control over geographic moves. By the late eighteenth century, the forces of economic liberalism and a rising commercial economy diminished the functional equality of women and eroded their already problematic legal standing.
History of the Colonial System in the XVIII Century
The contest for world-empire, from which we have seen Great Britain emerge victorious, was closely followed by a less successful struggle to preserve that empire from disrupting forces. We may properly leave to American history the details of the process by which, as the colonies became more acutely conscious of the inherent conflict between their economic interests and the colonial and commercial policy of Great Britain, they grew at the same time into a self-confident and defiant independence. Nevertheless, as an epochal event in the history of British imperialism, the American War of Independence deserves a prominent place in European history.
Mercantilism and the British Colonies
The germs of disease were imbedded in the very policy to which many statesmen of the eighteenth century ascribed England’s great career,— the mercantilist theories, whose acquaintance we made in an earlier chapter. The mercantilist statesman, anxious to build up the power, and therefore the wealth, of his country, logically conceived three main ideas about colonies:
(1) they should furnish the mother country with commodities which could not be produced at home; (2) they should not injure the mother country by competing with her industries or by enriching her commercial rivals; and (3) they should help bear the burdens of the government, army, and navy.
Each one of these ideas was reflected in the actual policy which the British government in the eighteenth century adopted and enforced in respect of the American colonies.
Regulation of Colonial Industry. Bounties]
Various expedients were employed to encourage the production of particular colonial commodities which the British Parliament thought desirable. The commodity might be exempted from customs duties, or Parliament might forbid the importation into Great Britain of similar products from foreign countries, or might even bestow outright upon the colonial producer “bounties,” or sums of money, as an incentive to persevere in the industry. Thus the cultivation of indigo in Carolina, of coffee in Jamaica, of tobacco in Virginia, was encouraged, so that the British would not have to buy these desirable commodities from Spain. Similarly, bounties were given for tar, pitch, hemp, masts, and spars imported from America rather than from Sweden.
Restrictions on Colonial Industry
The chief concern of the mercantilist was the framing of such governmental regulations of trade as would deter colonial commerce or industry from taking a turn which conceivably might lessen the prosperity of the British manufacturers or shippers, on whom Parliament depended for taxes. Of the colonial industries which were discouraged for this reason, two or three are particularly noteworthy. Thus the hat manufacturers in America, though they could make hats cheaply, because of the plentiful supply of fur in the New World, were forbidden to manufacture any for export, lest they should ruin the hatters of London. The weaving of cloth was likewise discouraged by a law of 1699 which prohibited the export of woolen fabrics from one colony to another. Again, it was thought necessary to protect British iron- masters by forbidding (1750) the colonists to manufacture wrought iron or its finished products. Such restrictions on manufacture were imposed, not so much for fear of actual competition in the English market, as to keep the colonial markets for English manufacturers. They caused a good deal of rancor, but they were too ill enforced to bear heavily upon the colonies.
Restrictions on Colonial Trade
More irksome were the restrictions on commerce. As far back as 1651, when Dutch traders were bringing spices from the East and sugar from the West to sell in London at a handsome profit, Parliament had passed the first famous Navigation Act, which had been successful in its general design—to destroy the Dutch carrying trade and to stimulate British ship-building. In the eighteenth century a similar policy was applied to the colonies. For it was claimed that the New England traders who sold their fish and lumber for sugar, molasses, and rum in the French West Indies were enriching French planters rather than English. Consequently, a heavy tariff was laid on French sugar-products.
Moreover, inasmuch as it was deemed most essential for a naval power to have many and skilled ship-builders, the Navigation Acts [Subsequent to the Act of 1651, important Navigation Acts were passed in 1660, 1663, 1672, and 1696.] were so developed and expanded as to include the following prescriptions:
(1) In general all import and export trade must be conducted in ships built in England, in Ireland, or in the colonies, manned and commanded by British subjects. Thus, if a French or Dutch merchantman appeared in Massachusetts Bay, offering to sell at a great bargain his cargo of spices or silks, the shrewd merchants of Boston were legally bound not to buy of him. (2) Certain “enumerated” articles, such as sugar, tobacco, cotton, indigo, and, later, rice and furs, could be exported only to England. A Virginia planter, wishing to send tobacco to a French snuff-maker, would have to ship it to London in an English ship, pay duties on it there, and then have it reshipped to Havre. (3) All goods imported into the American colonies from Europe must come by way of England and must pay duties there. Silks might be more expensive after they had paid customs duties in London and had followed a roundabout route to Virginia, but the proud colonial dame was supposed to pay dearly and to rejoice that English ships and English sailors were employed in transporting her finery.
Reasons for Early Colonial Toleration of Restrictions on the Industry and Trade
It would seem as if such restrictive measures would not have been tolerated in the colonies, even when imposed by the mother country. There were, however, several very good reasons why the trade restrictions were long tolerated.
Leniency of Enforcement
In the first place, for many years they had been very poorly enforced. During his long ministry, from 1721 to 1742, Sir Robert Walpole had winked at infractions of the law and had allowed the colonies to develop as best they might under his policy of “salutary neglect.” Then, during the colonial wars, it had been inexpedient and impossible to insist upon the Navigation Acts; and smuggling had become so common that respectable merchants made no effort to conceal their traffic in goods which had been imported contrary to provisions of the law.
The Stamp Act, 1765 and the Opposition in the Colonies
The other two-thirds of the £150,000 was to be raised under the Stamp Act of 1765. Bills of lading, official documents, deeds, wills, mortgages, notes, newspapers, and pamphlets were to be written or printed only on special stamped paper, on which the tax had been paid. Playing cards paid a stamp tax of a shilling; dice paid ten shillings; and on a college diploma the tax amounted to £2. The Stamp Act bore heavily on just the most dangerous classes of the population— newspaper-publishers, pamphleteers, lawyers, bankers, and merchants. Naturally the newspapers protested and the lawyers argued that the Stamp Act was unconstitutional, that Parliament had no right to levy taxes on the colonies. The very battle-cry, “Taxation without Representation is Tyranny,” was the phrase of a Boston lawyer, James Otis.
At once the claim was made that the colonists were true British subjects and that taxation without representation was a flagrant violation of the “immemorial rights of Englishmen.” Now the colonists had come to believe that their only true representatives were those for whom they voted personally, the members of the provincial assemblies. Each colony had its representative assembly; and these assemblies, like the parent Parliament in Great Britain, had become very important by acquiring the function of voting taxes. The colonists, therefore, claimed that taxes could be voted only by their own assemblies, while the British government replied, with some pertinency, that Parliament, although elected by a very small minority of the population, was considered to be generally representative of all British subjects.
The Stamp Act Congress, 1765
Many colonists, less learned than the lawyers, were unacquainted with the subtleties of the argument, but they were quite willing to be persuaded that in refusing to pay British taxes they were contending for a great principle of liberty and self-government. Opposition to the stamp tax spread like wildfire and culminated in a congress at New York in October, 1765, comprising delegates from nine colonies. The “Stamp Act Congress,” for so it was called, issued a declaration of rights— the rights of trial by jury [Footnote: The right of trial by jury had been violated by British officials in punishing smugglers.] and of self-taxation—and formally protested against the Stamp Act.
Repeal of the Stamp Act, 1776
Parliament might have disregarded the declaration of the Congress, but not the tidings of popular excitement, of mob violence, of stamp- collectors burned in effigy. Moreover, colonial boycotts against British goods—”nonimportation agreements”—were effective in creating sentiment in England in favor of conciliation. Taking advantage of Grenville’s resignation, a new ministry under the marquess of Rockingham, [Footnote: Rockingham retired in July, 1766] a liberal Whig, procured the repeal of the obnoxious Stamp Act in March, 1766. While the particular tax was abandoned, a Declaratory Act was issued, affirming the constitutional right of Parliament to bind the colonies in all cases.
The Townshend Acts, 1767
That right was asserted again in 1767 by a brilliant but reckless chancellor of the exchequer, Charles Townshend, who, without the consent of the other ministers, put through Parliament the series of acts which bear his name. His intention was to raise a regular colonial revenue for the support of colonial governors, judges, and other officers as well as for the defense of the colonies. For these purposes, import duties were laid on glass, lead, painters’ colors, paper, and tea; the duties were to be collected by English commissioners resident in the American ports; and infractions of the law in America were to be tried in courts without juries.
Lord North, Prime Minister, 1770
At this crucial moment, King George III chose a new prime minister, Lord North, a gentleman of wit, ability, and affability, unfailingly humorous, and unswervingly faithful to the king. Among his first measures was the repeal (1770) of the hated Townshend duties. Merely a tax of threepence a pound on tea was retained, in order that the colonies might not think that Parliament had surrendered its right to tax them. Lord North even made an arrangement with the East India Company whereby tea was sold so cheaply that it would not pay to smuggle tea from the Dutch.
“The Boston Tea Party,” 1773
But the colonists would not now yield even the principle of Parliamentary taxation. [Footnote: Despite the fact that the colonists had regularly been paying import duties on molasses and on foreign wine.] They insisted that were they to pay this tax, trifling as it might be, Parliament would assert that they had acknowledged its right to tax them, and would soon lay heavier taxes upon them. They, therefore, refused to buy the tea, and on a cold December night in 1773 a number of Boston citizens dressed up like Indians, boarded a British tea ship, and emptied 342 chests of tea into the harbor.
The Five “Intolerable Acts,” 1774
Boston’s “Tea-Party” brought punishment swift and sure in the famous five “intolerable acts” (1774). Boston harbor was closed; Massachusetts was practically deprived of self-government; royal officers who committed capital offenses were to be tried in England or in other colonies; royal troops were quartered on the colonists; and the province of Quebec was extended south to the Ohio, cutting off vast territories claimed by Massachusetts, Connecticut, and Virginia. This last act, by recognizing and establishing the Roman Catholic Church in French-speaking Quebec, excited the liveliest fear and apprehension on the part of Protestants in the English-speaking colonies.