People

• John Adams
• Samuel Adams 
• John Dickinson
• Daniel Dulany
• Thomas Jefferson 
• Mathias Nicolls
• James Otis
• William Penn
• Nicholas Trott 
• James Willison

Places

• Boston, Massachusetts
• New York, New York 
• Philadelphia, Pennsylvania
• Virginia

Events

Resources

Law and People in Colonial America by Peter Hoffer was published by The John Hopkins University Press in 1992.  It is a secondary source that outlines the justice system of Colonial America and describes in detail how the system worked.

The Law of The Land by Charles Rembar is a secondary source that addresses everything from how evidence was presented for taxes and how they worked in colonial times.

The Transformation Of American Law, 1780-1860 by Morton Horwitz is a reputable secondary source full of a lot of facts about how the legal system has changed from the dates listed above.  This work addresses everything from common law to commercial law.

www.historychannel.com gives excellent insight into many events in world history.  It is the web site of the cable channel. 

www.britannica.com is an online encyclopedia. This secondary source offers general, concrete information on virtually every significant topic worldwide.

www.discoveryschool.com is a web site database designed for students and teachers.  Like britannica.com, this primary source offers specific information on various topics ranging from science to American history.  The following links are all links to sites that have original documents.

www.Federalist.com
www.yale.edu
w3.one.net

Looking for some information on a historical event? This is a great site with essays written by various authors.

http://odur.let.rug.nl/~usa/E/index.htm

This site contains a link to a page containing very thorough information about Benjamin Franklin.

http://odur.let.rug.nl/~usa/B/bfranklin/frankxx.htm

Updated November 12, 2001
© Mark Canada, 2001
mark.canada@uncp.edu

Law 

Legal Profession

Once the lawyers of the Colonial Period passed their bar exam, there were guaranteed positions for them.  Most lawyers were considered the elite of society. Most studied at esteemed universities such as Harvard College (now known as Harvard University).  Once they graduated, they worked in law enforcement or in political fields.  Many of the lawyers in the colonial times were forced to do things that they sometimes did not agree with. Lawyers such as Samuel Adams, James Otis and John Dickinson were forced to uphold British law even though they disagreed with it.  Examples of these laws were The Sugar Molasses Act of 1764, The Stamp Act of 1765 and The Townshend Acts.  Issues such as Taxation without Representation and forming a new united country were considered treason to discuss. 

Lawyers of the colonial period were among the most educated people of the colonies and therefore were the only individuals that were qualified to write acts of Congress and eventually the Decelaration of Independence. Lawyers were also the penmen of the revolution; many wrote books, newspaper columns, and Pamphlets supporting the patriots.

During the colonial time, lawyers were prominent in the South; however, the profession of law did not become popular until the eighteenth century. The main job of attorneys was not to represent clients but to write wills, manage estates, and advise clients on business manners.  Most of the colonies did not welcome lawyers and did not allow them to pratice for they did not trust them.  It was hard for a lawyer to make a living in the early colonies; therefore, not may lawyers made the trip from England.  In most cases lawyers were not even allowed to charge a fee for representing someone.  In extremist colonies, lawyers were not even allowed to practice.  When lawyers gained the right to charge for their service, they requested that they be allowed to bargain with the client over a price; this right would not be allotted until the middle of the nineteenth century.  Until then the legislative body set the price of what a lawyer would be paid. Most of the time it was a mere pittance. 

When lawyers were allowed to practice in the colonies, most of them were untrained and were mealy men and women that represented someone at the bar, as Hoffer states in his book (63).  As the profession grew more popular, more well-trained individuals started to represent the common man.  The newly trained lawyer brought with them a more complex language and ideals. The new practices of these lawyers were the start of common law.

17th Century

18th Century 

A controversial figure of the time was James Otis (1725-1783). Otis graduated from Harvard in 1743 and passed the bar in 1748.  Practicing out of Boston, Otis supported the Revolution by stating the legal oppresiveness of British Parliament.  He was the man who coined the phrase "taxation without representation is tyranny".  Otis was controversial because he was prone to fits of mild insanity and in 1769, after a fight with a Crown officer, was rendered harmlessly insane. Otis died in 1783 after being struck by lightening. 

Lawyers who legally opposed British rule were widespread. One man would come to beknown as the "Penman of the Revolution"; his name was John Dickenson.  Dickenson was an English trained lawyer practicing out of Philadelphia.  Dickenson was a conservative who clashed with Benjamin Franklin over the sovereignty of the Crown Governor. Dickenson wrote "Letters from a Farmer in Pennsylvania" in 1678.  In it, Dickenson clearly states his love of English rule and goes through many English taxation policies.  He states the benefits and necessities of these acts and feels England is doing a good job of ruling.  Dickenson's feelings of England can clearly be seen in this passage from "Letters from a Farmer in Pennsylvania":  "The Parliament unquestionably possesses a legal authority to regulate the trade of Great Britain and all her colonies."  When he gets to the Stamp Act his tune changes.  Dickenson writes, "If Great-Britain can order us to come to her for necessaries we want, and can order us to pay what taxes she pleases before we take them away, or when we land them here, we are as abject slaves as France and Poland can shew in wooden shoes, and with uncombed hair."  Obviously, Dickenson disagrees with the Stamp Act.  However, he feels that revolution is not the answer and even refuses to sign the Declaration of Independence.  His popularity in politics quickly declined but he remained a powerful person.  Dickenson died in 1808. 

Not all lawyers were as generous as Dickenson during the Revolution. One such lawyer is Samuel Adams.  Adams, who is related to John Adams, graduated in 1740 from Harvard College.  He wrote his thesis on whether or not it is lawful  to resist the supreme magistrate.  He said it was lawful.  Adams was unhappy with the corruption of politicians and judges so he constantly petitioned England to change things.  When England refused, he fought back.  In 1772, Adams formed a rebellious and successful party to prevent judges from being paid by the Crown.  One of his more forceful moments was when he was presiding over a legislature considering how to deal with the taxes of Britain.  When Adams saw that the group was becoming pro-British, he locked the doors and kept the people in and forced them to either side with him or withdraw from office and appoint an anti-British member.  Adams would have succeeded except one member managed to escape and ran to the local gaurd who ordered the door opened.  Adams would go on to sit in the First Continental Congress and his anti-taxation ideals would help shape the United States.  The legal profession had quite a turn-around in Colonial America.  Lawyers became patriots of a new country. 
 

Common Law 

In colonial times, there was a court structure that was different than that of Great Britain.  The English system was compartmentalized and consisted of specialized tribunals, while the colonial system was a hierarchy of overlapping courts (Hoffer 27).  The lowest level was the justice of the peace.  Next came the county courts.  The supreme or superior courts were the highest level court. If a person did not agree with the decision the court made, then they could appeal it; however, most of the time, the same justices or judges would preside over the higher court.  There were, however, limits on the county courts; they could not hear cases of "Life and Limb" or felonies (Hoffer 27).  The justice of the peace also "heard lawsuits brought up by servants, yeomen, planters, and sometimes even Indians."

Common law was not the only system of law that ruled over the colonies. Moral law was a major influence on the colonist and in common law itself. Common law was based on moral law which was derived from the Bible, yet not taken directly from it.  People such as Thomas Jefferson expressed concern in what a big part Christianity played in common law (Mokkonen 173).  This was the initial concern for separation of church and state.
 

     Otis James (1725-1783) 

Church and Morals: In Accordance with the Law

As a matter of fact, not very many punishments were carried out because of the lack of power by the court system.  William Penn noticed this as a problem.  He derived William Penn's Great Law of 1682 to correct such harsh punishment.  Most of the punishments under his law were performed by a combination of whipping, forfeiture, fines, and imprisonment.  The court system did eventually get stronger as more and more colonists began to support it.  But in comparison to the court systems of today, the ones of the colonial period were virtually nonexistent.  Most of the laws were carried out by the English appointed law enforcement officials (Monkkonen 148).  The courts were used for more important ordeals, such as discussions between the separating colonies and Great Britain 

Punishment in Colonial America

Crime in Colonial America consisted of many acts that we face today such as murder, theft, and disturbing the peace.  Certain crimes that are not considered that threatening these days were taken very seriously.  For example, slander (making a spoken statement that ruins someone's reputation), public drunkenness and hog theft were a very big deal.  With an economy virtually based on agriculture, farm animals were valued highly.  In most of the colonies it was against the law to swear, not attend church services, to exhibit inappropriate behavior on the Sabbath, and to display unacceptable conduct between members of the opposite sex, i.e. premarital sex or post-marital adultery.  Treason was a serious crime because the king wanted to keep a tight leash on the new colonies.  Blasphemy was another crime that resulted in harsh punishment. Blasphemy involved denying God or the holy Trinity, declaring that there is more than one God, or worshipping another god or goddess.  From the last two examples, one can tell that freedom of speech was not yet a right of citizens.  Perpetuating a new political or religious belief took tons of courage. 

Law officials were appointed by the townspeople and carried out criminal punishment.  The system ran higher and had a clear structure.  On the discoveryschool.com web site it is explained as follows:  "[Each] colony had a governor, a legislature, the governor's council, and a court system.  In royal colonies, the monarch appointed the governor.  In proprietary (owned privately by a group or individual) colonies, the proprietor(s) [appointed the governor]."  There were also a couple of corporate colonies like Rhode Island and Connecticut that actually allowed voters to elect their own governor.  Sheriffs made arrests and made sure court orders were carried out.  Courts with larger jurisdiction tried defendants involved in serious crimes like murder, blasphemy and treason.  Jails were used to hold those accused of criminal activity until they were tried, or, if they were fined, until that fine was paid in full. We will go into more detail involving specific types of punishment. 

Colonial Americans thought of  themselves as moral and religious people.  There were, however, many occurrences of crime and wrongdoing.  Here are some common forms of punishment:

• Stocks:  Wooden framework with foot holes in which the ankles were locked while the criminal sat down.
• Pillory:  Like the Stocks, the Pillory was a wooden framework.  The Pillory, on the other hand, had holes for the head and hands.  Also, the criminal had to stand.  It was common to throw items such as rotten fruit and/or rocks at the criminal which made the already extremely uncomfortable Pillory an even worse punishment.
• Whipping Post:  This was simply where criminals were whipped before the entire town.
• Ducking Stool:  The Ducking stool was a chair to which criminals were tied and dunked into water as punishment.

Those in a higher social class might be punished less for the same crime.  This served true in the gender category as well.  A woman could be whipped or publicly shamed for the same crime in which a man would only receive a fine.  Slaves were always convicted at the local courts and were given physical punishment with disregard to whether it was the slave's first, second or third conviction.  Children committed crime as well.  At age fourteen, adolescents had to appear in court but if the court thought a child knew the difference between right and wrong (s)he could be tried as early as age 8.  The harshest punishment children received was a trip to the whipping post.  Slave children and orphans were most likely involved in criminal conviction.

Works Cited

• Dickinson, John. Letters From a Farmer in Pennsylvania. Philadelphia, 1768.
• Friedman, Lawrence.  A History of American Law. New York: Simon and Schuster 1973.
• Hoffer, Peter. Law and People in Colonial America. Baltimore: Johns Hopkins University Press 1992.
• Horwitz, Morton. The Transformation of American Law, 1780-1860. New York: Oxford University Press 1992.
• Monkkonen, Eric. Crime and Justice in American History: The Colonies and Early Republic. 2 vol Los Angeles: Meckler 1991.
• Rembar, Charles. The Law of the Land. New York: Simon and Schuster 1980.