Peter Charles Hoffer.
Law and People in Colonial America: Revised Edition.
Baltimore and London: Johns Hopkins University Press, 1998. xvii + 193 pp.
Preface to Revised Edition, preface to First Edition, footnotes,
bibliographic essay, and index. $38.50 (cloth), ISBN 0-8018-5816-X ISBN
0-8018-5822-4; $14.95 (paper), ISBN .
Gaspare J. Saladino , University of Wisconsin-Madison.
Americans and their Passion for Law
In the last two decades, the history of early American law
has become a major focus of scholarly concern. Social historians, who
recognized the intimate relationship between law and social behavior and
the need to explore once-dreaded legal sources to understand social change
more fully, joined forces with legal historians, who understood how the
legal system worked. The union was a happy one because most legal
historians subscribed to the "law and society" school that studied "law in
the context of social thought and action (p. 166)."
By the early 1990s, social and legal historians had
produced enough work to warrant a synthesis. To fill this need, in 1992
Peter Charles Hoffer, professor of history at the University of Georgia
and a practitioner of the law-and-society approach, published Law and
People in Colonial America, a terse survey (five chapters and 156
pages) that sought "to integrate legal history into courses on Early
America (p. x)." Now, Hoffer has published a revised and updated edition,
splicing into his earlier text recent historical scholarship on gender,
ethnicity, and European rivalries in America. He also has added a new
chapter on Euro-Indian law. As he portrays legal and social development in
early America, Hoffer solicitously defines legal terms and theories;
identifies lawyerly pursuits and ploys; outlines historiographical trends;
and evaluates the vast English and American historical literature.
To identify the legal baggage that the first English
settlers carried to America in the seventeenth century, Hoffer's first
chapter describes English common, statute, and corporate law and English
legal institutions, especially courts and justices of the peace; and
explores how the harsh law and complex institutions affected the lives of
Englishmen. To facilitate settlement and to share in America's wealth, the
English Crown gave corporate charters to merchant companies, whereby
settlers received the rights and privileges of Englishmen and,
inadvertently, a considerable degree of self-government. During the first
century of settlement, England allowed (with minimal interference) the
colonies to evolve into self-governing commonwealths, having their own
political and legal systems.
Early Americans were passionate and pragmatic about the
law, which pervaded their social, economic, and political relationships.
The settlers shaped and reformed the harsh law and complex legal
institutions of England to meet their everyday needs; they also helped to
create new law to meet new needs. The law developed differently from
colony to colony. For example, in Virginia's dynamic and mobile
entrepreneurial society, dominated by planters, the law's principal
concern was the monitoring of the labor system (indentured servants and
slaves) by the House of Burgesses, a representative assembly not
contemplated by Virginia's corporate charter. In the stable communitarian
society of Massachusetts, where the intent was to create a Bible
Commonwealth, the law promulgated by the colony's legislature and
town-meeting governments dictated people's lives. However, their rights,
liberties, and property were protected by an historic code of laws--the
Laws and Liberties (1648).
Hoffer's second chapter depicts the diverse colonial court
systems; this diversity was rooted in the colonies' different origins and
legal interests. For instance, the proprietary colony of Maryland and the
former Dutch colony of New York had feudal manorial courts. Toward the end
of the seventeenth century, courts began to take the place of community
institutions in resolving legal disputes. American court days were
important in bringing together the entire community--the rich and the
poor. Resisting sophisticated and cumbersome English procedures, these
early courts were informal, open, and responsive. Judges and justices of
the peace, rarely possessing the legal training and knowledge of their
English counterparts, dispensed swift, simple justice, tempered with
mercy. Distrusted and unwelcome, lawyers hardly existed as a profession.
The colonies had created and developed distinct and
utilitarian legal cultures, but their legal isolation began to end with
the Glorious Revolution of 1688-89. The intensely bureaucratic imperial
system established under William III (and enforced in varying degrees by
his successors) began to monitor more closely colonial legislation and
Chapter three, on Euro-Indian law, describes how Native
Americans interacted with the Spanish, French, and English. Europeans
learned the importance of gift-giving among Indians, and a "gift-based
diplomacy became the lubricant of law on the edge (p. 52)." Europeans and
Indians borrowed each other's law; like European societies, Native
American societies were law-based. The uncompromisingly harsh Spanish
legal system was infused with religious concepts and Spain forcibly
attempted to impose its laws upon Indians, whom they believed to be
racially inferior. Spaniards tried to convert Indians to Christianity or
to enslave them, but Indians resisted and eventually made the legal system
work for them. Native Americans also successfully resisted French
laws--whereupon, the French, assuming the roles of good fathers, became
less demanding and more receptive to Native American ways. The French
found a "middle ground" by willingly negotiating with Indians, raising
gift-exchanging to an art. The English, a commercial people, located their
middle ground in trade; they introduced the concept of commodities, under
which everything was a commodity to be exchanged. To further the prospects
of trade and peace, the English, who did not rigorously attempt to force
their legal system on Native Americans, negotiated treaties and exchanged
gifts with them. In particular, they learned the importance of reciprocity
to the Indians. After 1763 the English, now masters of North America,
tried to remake law for the edge, but land speculators and settlers, who
were moving into Indian territory, seriously disrupted English relations
Chapter four shows that, by about 1700, the swift, simple
system of justice was declining, as people turned increasingly to the
courts. The number of lawsuits rose dramatically, "amounting to a
veritable explosion of litigation (p. 79)." This litigation--concerned
largely with mundane matters such as debts and contracts--was an outgrowth
of an expanding commerce, the development of a market economy (especially
the use of commercial paper), and a weakening in the power and influence
of local institutions. Most litigants instituted lawsuits, a public and
dignified process, to right wrongs done to their persons and property.
Sometimes, however, one social class used the courts to strike at another
class, while influential and powerful individuals employed the courts to
persecute and punish personal enemies.
The explosion of lawsuits promoted the growth of a large
professional class of lawyers, and the adoption, by the rising provincial
assemblies, of a multitude of statutes that were more precise, technical,
and enforceable. Such legislating made the law the personal preserve of
lawyers, and, in fact, ever more lawyer-politicians sat in and helped to
control these assemblies, which represented and promoted property
interests. Since the informal law of the early years did not meet the
needs of litigation, Americans turned to English "book law" (legal
precedents and parliamentary statutes) and the anglicization of American
law began. American law became safe, settled, orderly, and repetitious;
lawyers were better trained, many of them receiving their education in
England; law books, dictionaries, manuals, and reports were common; and
pleading in courts, following the English model, became more lawyerly. A
surprisingly modern legal culture had evolved.
Chapter five demonstrates that colonial substantive law was
English substantive law, but that significant differences between English
and American law existed. Hoffer discusses an imposing range of topics:
real estate; inheritance; marriage and divorce; church and state; criminal
law; criminal procedure, trial, and representation by legal counsel;
juries; criminal penalties; and slavery. Some of the distinctive aspects
of colonial substantive law, separating it from that of England, are
striking. Employing the "deed and record" system, Americans simplified
land transfer, making it a more egalitarian system. Breaking away from the
practice of primogeniture, they made the chief concern of inheritance law
the family, not the individual. Criminal law was less class-ridden; and
the burden of proof rested in criminal cases with the prosecution. But
"the most striking American exception... was chattel slavery (p. 121),"
the very existence of which under English law required the enactment of
statutes, such as black codes, unknown in Great Britain.
Because chapter five attempts too much, its detail
overwhelms, even though it only scratches the subject's surface. Land law,
the courts, church-state relations, and slave law each would be worthy of
a chapter. For example, Slavery & the Law, ed. Paul Finkelman
(Madison House, 1997), an extremely useful collection of essays on the law
of slavery unavailable to Hoffer at the time of writing, demonstrates the
centrality of race-based slavery to the development of the American legal
system that protected the property of slave holders and institutionalized
Hoffer's last chapter teaches us that the turn to law
produced considerable tension. Virtually every group in the relatively
open society of early America used the law as a problem-solving weapon to
pursue its own agenda. Protective and proud of their political and legal
systems, Americans reacted vigorously and angrily after 1760, when the
British Parliament imposed additional customs regulations and taxes upon
them. "A crisis of law and order" (p. 126) erupted. In particular,
Americans believed that imperial authorities were usurping the power of
their legislative assemblies, which had become miniature parliaments,
capable of governing and nurturing a burgeoning society. Legislatures had
extensive legislative, administrative, and judicial powers because the
concept of separation of powers was basically only that--a concept.
Resistance to the growing centralization of imperial
administration was led by canny, well-educated, self-confident, and
experienced lawyer-politicians, who justified dissent first in the name of
the common law and then of fundamental law. They employed common-law
courts, where they had honed their lawyerly skills, as an avenue of
political protest in such famous cases as the Parson's Cause, the writs of
assistance case, the Alexander McDougall case, and the Boston Massacre
trials. These lawyer-politicians also argued in numerous pamphlets (which
read like legal briefs) that Britain had violated their ancient rights and
liberties as Englishmen, embedded in founding charters. Americans
incorporated these revered charters into fundamental law. By their
actions, lawyer-politicians transformed a political dispute into a legal
contest, in which they utilized the law to resolve the controversy.
In 1776 Americans renounced their allegiance to the King
because the King and his functionaries had breached English common law and
the compact with the colonists. By abjuring their fealty, Americans
separated fundamental from common law. "American fundamental law," states
Hoffer, "made the people sovereign" (p. 146); the people became the source
of all power and their will was channeled through the law. After the
Revolution, the law that had justified rebellion replaced the King as the
To replace royal government, Americans created state
governments and wrote republican constitutions, whereby law preceded,
legitimated, and limited power. The writing of state constitutions,
asserts Hoffer, was the "most audacious legal program" (p. 145) of
revolutionary Americans. By limiting power, constitutions (some of which
included bills of rights) protected rights, liberties, and property.
Representing a sovereign people, state legislatures were supreme, but
constitutions also provided for checks and balances and separation of
powers--core concepts of revolutionary constitutionalism. The
implementation of these concepts was a break with the English and colonial
past. Lastly, constitutions allowed for the participation of most people
in politics--another historic development.
Law and People in Early America
is a solid, well-organized synthesis, although the new third chapter on
Euro-Indian law breaks the volume's narrative flow. The introduction of
Spanish and French laws and how they interacted with Native-American law,
although informative when comparing them to English law, seem misplaced in
a volume that concentrates on British North America.
A graceful stylist, Hoffer has a flair for the descriptive
phrase and the telling quotation. His penchant for the latter, however, is
perhaps overdone. His chapter titles are quotations that most historians
use as epigraphs to embellish traditional chapter titles. This technique
makes it more difficult for the student to determine a chapter's content.
For example, the fifth chapter--mostly concerned with substantive law--is
entitled: "Just so th' Unletter'd Blockheads of the Robe; (Than
Whom no Greater Monsters on the Globe); Their Wire-Drawn, Incoherent,
Jargon Spin, Or Lug a Point by Head and Shoulders In."
Hoffer's command of the secondary literature is impressive.
The shrewd and well-annotated twenty-one-page bibliographic essay
testifies to this fact, as do the references to the writings of about
thirty-five historians that Hoffer effectively incorporates into his text.
Hoffer's discussions of differing interpretations are well within the
reach of students, although they also profit the specialist. His
bibliography includes only a few references to law-journal publications--a
resource insufficiently exploited by most historians. Since many
agenda-driven legal scholars ignore or minimize historical context,
historians often dismiss their writings, thereby producing a "professional
bifurcation" in the field of legal history.
As stated earlier, state-constitution writing was "most
audacious." Bills of rights, Hoffer declares, were important features of
state constitutions, but he essentially ignores the number and variety of
rights protecting individuals and community that are contained in these
declarations, preferring instead only to stress the fact that "slaves,
women, aliens, non-Protestants, Indians, and the poor... were not accorded
status equal to that of free, Protestant men of property (p. 147)." This
statement is irrefutable, but hardly in character with much of his study
which does not focus on law's moral dimension.
Hoffer does not concentrate sufficiently on the origins,
meaning, and significance of rights and liberties in England and America.
Englishmen and Americans frequently discussed rights and liberties in
founding and settlement documents; legislative resolutions, laws, and
statutes; court records and law reports; addresses, petitions,
remonstrances, and memorials; legal, constitutional, and political
treatises; newspapers, broadsides, and pamphlets (including sermons);
resolutions of committees, towns, counties, congresses, conventions, and
private political, social, and economic organizations; bills or
declarations of rights; state constitutions; and the Declaration of
Independence (1776)--that historic document justifying rebellion.
Peter Charles Hoffer has given us a solid (though not
comprehensive) synthesis and a thoughtful analysis of the recent
scholarship in the field of early American legal history that enhances our
understanding of the centrality of law to life in Early America. The
writing is precise and graceful; the narrative flows easily and rapidly;
the illustrative material is well chosen and effectively presented; and
the depiction of recent scholarship is evenhanded and balanced. Law and
People in Colonial America belongs on the bookshelf of any serious
student of Early America.
For an illustration of the sophistication of American lawyering circa
1770, see Bernard Schwartz, Barbara Wilcie Kern, and R. B. Bernstein,
eds., Thomas Jefferson and Bolling v. Bolling: Law and the Legal
Profession in Prerevolutionary America (San Marino, Calif.: Huntington
Library Press, 1997), the first scholarly edition of the pleadings and
arguments drafted by Thomas Jefferson and George Wythe in a complex 1770
lawsuit involving legal issues having to do with wills, inheritance,
property, and slavery.
For a study on state-constitution making, unavailable to Hoffer, one
should consult Marc W. Kruman's Between Authority: State Constitution
Making in Revolutionary America (Chapel Hill: University of North
Carolina Press, 1997). Kruman questions the prevailing wisdom which
contends that constitutions entrusted virtually all power to legislatures.
Stanley N. Katz briefly discusses this bifurcation in "The Problem of a
Colonial Legal History," in Jack P. Greene and J.R. Pole, eds.,
Colonial British America: Essays in the New History of the Early Modern
Era (Baltimore and London: Johns Hopkins University Press, 1984),
478ff., and Laura Kalman fully considers it in The Strange Career of
Legal Liberalism (New Haven and London: Yale University Press, 1996).
For the student, a valuable book on rights in England and America from
1603 to 1791, unavailable to Hoffer, is Jack N. Rakove, Declaring
Rights: A Brief History with Documents (Boston and New York, 1998);
this volume includes a sound essay on the interdisciplinary literature of
rights. A more comprehensive treatment of rights and liberties in early
America, also designed for the student, is Patrick T. Conley and John P.
Kaminski, eds., The Bill of Rights and the States: The Colonial and
Revolutionary Origins of American Liberties (Madison, Wis.: Madison
House, 1992). On the Declaration of Independence, see, e.g., Pauline
Maier, _American Scripture: Making the Declaration of Independence (New
York: Alfred A. Knopf, 1997; Vintage paperback, 1998).
Library of Congress
Call Number: KF361.H63 1998
* Law -- United States -- History.
* United States -- History -- Colonial period, ca. 1600-1775.
Citation: Gaspare J. Saladino . "Review of Peter Charles
Hoffer, Law and People in Colonial America: Revised Edition," H-Law, H-Net
Reviews, January, 1999. URL:
achieves a critical balance of generalization and specificity: the former
insofar that gives a broad historical overview of law and colonial society
and of the ramifications of their interplay for America in the centuries
that followed; the latter insofar that he hones in on the origins and vast
effects of colonial society’s legal underpinnings, contributing a text
which can be effectively utilized by scholars…seeking to extrapolate the
importance of colonial legal structures both to colonial society and to
late twentieth century American society as well.”
Joseph Fruscione, review
of Law and People in Colonial America: Revised Edition, by Peter
Charles Hoffer, American Studies International 37 (October 1999):