Hello VA-Hist:

  Please find attached an interesting pan-Empire commentary on
the question raised the other day about law in Virginia and North
Carolina.  This comes courtesy of H-Law.

Harold S. Forsythe
------- Forwarded Message Follows -------
Date sent:              Thu, 01 Nov 2001 22:01:23 -0600
From:                   Paul Drake <[log in to unmask]>
Subject:                VA-HIST Digest - 29 Oct 2001 to 30 Oct 2001 (#2001-1
To:                     [log in to unmask], [log in to unmask]


> > To H-Law,
> >
> >   We on H-VA-Hist have come across a question that the scholars
> > on H-Law may be able to help us with.  I am not sure how to put
> > the question but:  did property rights, recognition of marriage,
> > inheritance, the whole range of private and family law, chance
in
> > relation to independence, the Articles of Confederation, and
then
> > the Constitution?  What about relations between the states
> > involving these matters, during the fluid period, 1776-1790?
> >   We appreciate any assistance you can provide.
> >
This is a HUGE question, and simple answers will provide but little
upon which to base future research or thought.

That said, we should realize that in no small measure we - settlers
of Australia, South Africa, Canada, New Zealand, etc. - carried the
British law to these colonies, thus providing a measure of
consistency in application to the English speaking world.  That law
had been devised  across a full millenia and more, and was really
quite settled and satisfactory to order the daily lives of the
people of the British Isles.

However, from the first day here we encountered widely varying
circumstances arising from the wild state of this incredibly vast
and unsettled land, conflicts with Native Americans because of our
views toward absolute ownership of land and animals, and problems of
governing that were unique to being a great distance - four to eight
weeks of travel - from our heads of state (the King/Queen)  and from
the legislative arm of govt. ("our" Parliament).

So it was that those who had the law in their control - colonial
legislatures and Governors - were called upon to shape the law of
Britain to meet the myriad "new" circumstances presented by this
place.  Within a mere century and a half - by 1750 - many, many
differences between "the law" of, say, New England and that of the
Carolinas, were apparent.  But one example will suffice.  By 1750
the economic advantages of indentured servants and slave labor in
Virginia and the many resultant legislative acts and court decisions
having to do with "free" as opposed to "slave" as opposed to
"servants," as well as those regulations needed to deal with
"run-aways" in both categories, rendered the few similar measures
needed and in place in Conn. miniscule by comparison.

Of importance to the question also, notice that the colonial
legislatures regularly brought rather sweeping changes to their
jurisdictions as a result of demand by their own populous.  At the
same time, the local courts, being called upon to solve daily
problems unique to the varied lifestyles of their constituents,
brought myriad small, usually quite gradual changes throughout the
individual colonies year in and year out.

So what, you say? So it was that at the coming of the Revolution,
our legislatures and courts at all levels had 150 years of
experience with shaping British law to OUR living conditions,
requirements and our many "new" customs and mores.  When we
separated from Britain, we lost the Crown and its appointed Colonial
Governors.  Yet, once it was decided that we would have a President
and not a "King George Washington," and that we would have elected
legislators not bound by the rules of Parliament, though MANY
problems arose, it was not a terribly difficult task to undertake
governing ourselves.  We had the institutions in place and the
experience needed in our immediate background.

There were conflicts between and among these colonies; surely many,
in fact.  Still though, most of such were solved by the requirements
and constraints of a system of commerce and business that had been
active and vital since the earliest days.  Many are the writings
that reveal that the transitions were quickly made and that very few
were fraught with great dilemmas or problems.

In short, many think that to presume that great and earth-shaking
changes in the law and in the colonial lifestyles were brought by
the Revolution are simply mistaken.  The farmer, housewife, child
and artisan of 1775 surely had no trouble being that same man or
woman in 1785.  In fact, those that lived outwards of the larger
towns and cities hardly recognized the few changes brought to their
lives.

Such adaptations of the old law had been required and part of life
since Jamestown, and those needed were accomplished, sometimes very
quickly to meet extraordinary new challenges, but usually quite
gradually across 175 years - seven generations.  Our shedding of the
Crown and Parliament, dramatic, costly and dearly bought as it was,
may now be said to have been but a bump in our long road.   Paul
Drake

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