Tag Archives: Slavery

The Common Law in Colonial America

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The Common Law in Colonial America –
Volume III, The Chesapeake and New England, 1660-1750
By William E. Nelson
Oxford University Press – £35.99

As the Professor of History and Professor of Law at Washington University in St. Louis, David Thomas Konig has written: ”This volume continues a multi-volume history of the common law in America by our greatest authority on the foundations of the American legal system. Like his other work, it is the product of unmatched meticulous research into the archival record of legal institutions as they affected the lives of ordinary Americans – male and female, white and black, powerful and weak. It is as much a human study as it is an institutional one, and it takes its well-earned place as a classic in legal history.”

Food for thought? Debate? Incendiary discussion?

The line ”it is as much a human study as it is an institutional one,” does, to my mind, trigger a myriad of legalise speak and divine, humanistic thought analysis; the combination of which, really isn’t that easy to decipher.

There again, The Common Law in Colonial America – Volume III, The Chesapeake and New England, 1660-1750 was never going to be easy to decipher – which may partially explain why William E. Nelson has now reached his third volume of a clearly dense, and highly convoluted subject matter.

‘Convoluted,’ being among many of the pertinent key words throughout these ten, intrinsically (very) involved chapters.

In fact, amid one of the many sub-sections of The Common Law in Colonial America, chapter five’s ‘The Substance of Virginia Law’ leaps forth like no other: ”Slavery was not a major phenomenon in Virginia before the late seventeenth century. Existing scholarship agrees that Africans and descendants of Africans constituted only some 3 percent of the population in 1660 – fewer than one thousand blacks out of a total population of some twenty-five thousand.”

”Only 3 percent?”
Well that obviously makes it alright then…

Nelson continues: ”Most drudge work was performed by indentured servants,who were mainly young men and teenage boys from the British Isles. Although the few blacks present in the mid-seventeenth century on average served longer terms of servitude than whites, including terms for life, many blacks ultimately did become free, and no clear distinctions separated black servants from white ones during the periods of time during which they served. African servants lived with European servants, performed the same work as Europeans, and were subject to the same disciplinary rules and punishments as Europeans. Finally, if they became free, Africans and their descendants could buy and own land, indentured servants, and slaves, just as Europeans could.”

Does the question: why was there an indelible need for servants to begin with – not need to be asked here?

Was it not enough that many a white, young American, slaughtered many a red, native Indian? Did inexorable servitude really need to be imported into the so-called, New World as well?

Clearly it did, for which, in round-a-bout kind of way, The Common Law in Colonial America substantiates some kind of considered reasoning.

To be sure, this third volume begins where volume one ended and traces legal developments within the sphere of the New England colonies – from the years 1660 to the mid-eighteenth century. The fundamental claim of these 134 pages (not including Acknowledgements, Notes and Index) is that the ‘Glorious Revolution’ altered England’s policy toward its colonies.

Prior to said revolution, Charles II and James II sought to centralize power in the English empire, and the means by which they executed thus, was within the realm of centralization – whereby they continued to govern such young American states as Maryland and Virginia through the common law (a law they were to further impose on Massachusetts and the rest of New England).

As such, the trajectory of England’s (legal) imposition, still reverberates throughout much of the United States to this very day; of which this book qualifies as something of a Byzantine blueprint.

To once again quote Konig: ”It is as much a human study as it is a classic in legal history.”

David Marx

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