Ewing, Samuel E., III

Haskins, George L.

English

Penn Law: Legal Scholarship Repository

1958]THE SPREAD OF MASSACHUSETTS LAWIN THE SEVENTEENTH CENTURYGeorge L. Haskins t and Samuel E. Ewing, 3d tNo history of the colonial period will be complete until the spreadof ideas from colony to colony has been fully investigated. Intercolonialrelations have received considerable attention,' but the processes bywhich, and the extent to which, patterns of life and thought were carriedfrom colony to colony still await detailed exploration.A significant chapter in the history of those processes is the spreadof legal ideas and institutions. One phase of that topic can be illuminedby an investigation of the effect of the legislation of one colony uponthat of others. Thus, it is clear that certain of the laws of PlymouthColony were adopted by Massachusetts Bay,2 that certain laws of thelatter colony found their way to Connecticut 3 and eventually to NewYork,4 to New Jersey,5 to Delaware I and to Pennsylvania.7 However,no attempt appears to have been made systematically to determine theprecise extent of such intercolonial borrowing. It is the purpose ofthis paper to attempt to trace the provisions of the Massachusetts Codeof 1648 which were adopted by the colonies of Connecticut and NewHaven.The Massachusetts Code of 1648 , was the product of several yearsof effort to reduce to writing the laws of Massachusetts Bay.' Whenpublished, it was regarded as a complete statement of the laws, privi-t Professor of Law, University of Pennsylvania Law School. LL.B., HarvardLaw School, 1942. Member, Philadelphia Bar.: LL.B., University of Pennsylvania Law School, 1955. Member, ChesterCounty Bar.1. E.g., 1 OsooD, THI AERICAN COLONIES IN THE SEVNTEENTIH CENTURY 392-423 (1904).2. For example, divisible inheritance of land: Haskins, The Beginnings of PartibleInheritance in. the Anterican Colonies, 51 YALE L.J. 1280, 1281 (1942) ; recording ofdeeds: Haskins, The Beginnings of the Recording System in Massachluetts, 21 B.U.L.RXv. 281, 285 n.19 (1941).3. See notes 18-23 infra.4. GOEBXL & NAUGnTON, LAW ENORCE ZNT IN COLONIAL NLg YORK 16, 61(1944) ; 1 COLONIAL LAWS or Ntw YORK 6-71 (1894).5. See 23 NEv JSRS4Y ARcHIvs xiv-xv (1901).6. E.g., 1 DELAWARE BODY LAWS 1700-1749, at 297, 298 (1752).7. E.g., 1 AcTs or ASSmiBLY OF THt PROVINcE OF PENNSYLVANIA 33 (1775).8. THz LAWS ANI)D LIBmRTIS Or MASSACHUS=rvS (Farrand ed. 1929).9. These efforts are outlined in the MASSACHuUSTTS COLONIAL LAws 1660-1672(Whitmore ed. 1889).(413)414 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 106leges, duties and rights in force in the jurisdiction, and, as such, itwas the first comprehensive code of laws in the New World."0 Thatalone gives it special significance. But it derives added significancefrom the fact that many of its provisions were adopted by other New*England colonies. As the ensuing discussion will show, the Massa-chusetts Code had an indisputable influence on the codes of the neighbor-ing colonies of Connecticut and New Haven enacted in 1650 and 1656respectively. That influence is not surprising since the two Connecticutcolonies were strongly Puritan and were founded by men who hadbeen closely identified with the Massachusetts enterprise." The Con-necticut government, in fact, was established under authority fromMassachusetts,' 2 and examination of the Fundamental Orders adoptedin Connecticut in 1639 reveals an essential identity between the systemsof government obtaining in the two colonies.' New Haven Colony,although independent of other colonies, adopted a form of governmentsimilar in its principal respects to that of Massachusetts and Con-necticut.' 4At the outset, it may be noted that the codes of Connecticut andNew Haven are briefer and more condensed than that of Massachusetts.This was so chiefly because they contain few references to politicalmatters, which had been dealt with earlier by various enactments of theirrespective general courts; ' moreover, a number of Massachusettsprovisions were discarded in Connecticut as unsuitable to local condi-tions. On the whole, however, the Massachusetts influence is clear.The Connecticut colonists had been aroused by the efforts of theBay colonists to prepare the 1648 code, and in April, 1646, the GeneralCourt requested Roger Ludlow, former deputy governor, to draw upa code."0 That this was completed in 1650 is shown by a furtherreference, in the Connecticut Records on 5 February, 1650/51, to theeffect that the code had been concluded and established in the previousMay.' The Connecticut Code of 1650 contains, in all, seventy-eightprovisions, including the preamble. Of these, twenty-two provisions10. See generally Haskins, De [a codification dn droit en Aninrique du Nordau xvii* sicle, 23 REvUE D'HISTOIRE DU DROIT 311 (France 1955) ; Haskins, Codifica-tion of the Law in Colonial Massachusetts: A Study in Comparative Law, 30 IND. L.J.1 (1954).11. 1 OscooD, op. cit. supra note 1, at 301-03, 321.12. Id. at 303.13. Id. at 309-11.14. Id. at 325.15. E.g., THE FUNDAMENTAL ORDERS OF CONNECTICUT.16. 1 THE PUBLIC RECoRDs OF THE COLONY OF CONNECTICUT, 1636-1665, at 138(Trumbull ed. 1850).17. Id. at 216.SPREAD OF MASSACHUSETTS LAWare practically the same as certain sections of the Massachusetts Code.'8The wording was copied so completely that it is clear that the Con-necticut codifiers had before them a copy of the Massachusetts Codeand did not hesitate to borrow freely from it. Thirty-six provisionsof the Massachusetts Code were adopted with deletions '9 or amend-ments.2 ° There are only twenty new topics in the Connecticut Code,2'but examination of these provisions shows that six had been includedunder other Massachusetts provisions,' and all but a few of the remain-ing fourteen were concerned with purely local matters.All in all, there was little departure from the pattern set by theMassachusetts Code. Although sixty-six provisions of that code weremissing from the Connecticut Code, some of those related to govern-mental matters already provided for, and others were incorporated asparts of various sections of the Connecticut Code.' That Connecticutdid not strike out on its own, except for a half dozen of its seventy-eightprovisions, is an indication both of the completeness and comprehensive-ness of the earlier Massachusetts statute and of its suitability to theconditions of Puritan society elsewhere. By and large, Mr. Ludlowand his assistants were content to take the provisions of the Massa-chusetts Code, modify them where necessary, shorten them where wordy,and thus adapt them to the needs of the Connecticut Colony.18. These twenty-two provisions are the Preamble, Ability, Age, Arrests, Bal-last, Barratry, Burglary and Theft, Cruelty, Dammages pretended, Death untimely,Escheats, Fyre, Forgerie, Fornication, Idlenes, Inditements, Lands, freelands, Levyes,Manslaughter, Poore, Pound, pound breach, and Profane Swearing.19. These are Actions, Cattel Cornfields Fences, Children, Constables, Convey-ances fraudulent, Ecclesiasticall, Gaming, Lying, Magistrates, Straies, Wolves, andWrecks of the Sea.20. These are Attachments, Bills, Bounds of Townes and Persons, Capital Lawes,Cask & Cooper, Fines, Hygh-wayes, Indians, In-keepers, Juries jurors, Marriage,Masters Servants Labourers, Marshal, Militarie Affairs, Rates Fines, Records,Schools, Secretaire, Straies, Swyne, Tobacco, Trespasse, Votes, Watching and Weights& Measures.21. These twenty provisions are Cattle to bee Marked, Common Fields, CaveatsEntred, Dissorder in Courte, Secreets in Courte, Delinquents, Execution uppon Delin-quents, Fences, Guards at Meetings, Grand Jury, Ministers, Meintenance, Peage, Tim-ber, Treasurer, Verdicts, Wyne and Strong Water, Vessells, Forreigners, and HomeLotts.22. These six provisions are Cattle to be Marked, Common Fields, Fences, GrandJury, Ministers Maintenance, and Wyne & Strong Water.23. These sixty-six provisions are Ana-Baptists, Appeale, Appearance Non-Ap-pearance, Bakers, Benevolence, Bond Slavery, Causes Small causes, Charges publick,Clerk of Writs, Colledge, Condemned, Councill, Courts, Criminal causes, Deeds andwritings Deputies for the Generall Court, Distress, Dowries, Drovers, Elections,Farms, iFayrs & Markets, Ferries, Fish Fishermen, Freemen Non-Freeman, FugitivesStrangers, Generall Court, Governour, Heresie, Hydes & Skins, Jesuits, Impost, Im-presses, Imprisonment, Justice, Leather, Liberties common, Mills Millers, Monopolies,Oaths Subscription, Oppression, Payments, Pipe-staves, Powder, Prescriptions, Pris-oners Prisons, Protestation contra Remonstrance, Punishment, Replevin, Secresie,Ships Ship-masters, Strangers, Summons, Suits vexatious suits, Tile-earth, Torture,Townships, Treasure, Trespasse, Tryalls, Usurie, Wharfage, Wills intestate, Wit-nesses, Wood and Workmen.1958]416 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 106A similar process of adoption and adaptation can be seen in NewHaven. There, an enactment of 1643 had established the structure ofcolonial government.24 However, this scheme was not made part ofthe code that New Haven later adopted, and it remained separate fromthe rest of the colony's law. When it was determined to collect theNew Haven laws into one body, the General Court assigned the task tothe governor. His use of the Massachusetts Code is made plain inthe New Haven records.' The New Haven Code was drawn up,approved and then sent to England to be printed in the fall of 1655."The completed code of 1656 contains only sixty-seven provisions, ascontrasted with the one hundred and twenty-three sections of theMassachusetts Code; but in the heading of the New Haven Code specificacknowledgment is made to the Massachusetts laws,2 7 and theirinfluence can be detected in the great majority of its provisions.Twenty-seven sections of the Massachusetts provisions are con-tained in the New Haven Code, some of them combined with others.",Twenty-nine of the New Haven provisions are modifications of Massa-chusetts provisions,29 and only thirteen are topics original to NewHaven,"0 although even some of these latter were included in the24. RECORDS OF THE COLONY AND PLANTATION AT NEW HAVEN, 1638-1649, at112-16 (Hoadley ed. 1857).25. "The Gouernour being formerly desired by this court to view ouer the lawesof this jurisdiction, and draw up those of them which he thinkes will be most neces-sary to continew as lawes here, and compyle them together fitt to be printed, whichbeing done, were now read, considered, and by vote confirmed, and ordered to beprinted with the articles of confederation also, and the court further desired thegouernour to send for one of the new booke of lawes in the Massachusetts colony,and to view ouer a small booke of lawes newly come from England, which is saidto be Mr. Cottons, and to add to what is already done as he shall thinke fitt, and thenthe court will meete againe to confirme them, but in the meane time, [when they arefinished] they desire the elders of the jurisdiction may haue the sight of them fortheir approbation also." 2 REcORDs oV THE COLONY OR JURISDICTION o Nzw HAVEN,1663-1665, at 146-47 (Hoadly ed. 1858).26. Id. at 154.27. "Certaine Lawes, Liberties, and Orders, made, granted, and established, atseverall times, by the Generall Court of New-haven Colony, for and to the Inhabitantsof that Jurisdiction, now Collected, and further Published, for the use of such as areconcerned in them, wherein they have made use of the Lawes published by the Honour-able Colony of the Massachusetts." Id. at 571.28. These twenty-seven provisions are Age, Appearance Non-Appearance, Attach-ments, Bakers, Barratrie, Bills, Burglarie and Theft, Cask & Cooper, Conveyancesfraudulent, Damages pretended, Suits, Distresse, Dowries, Fyre, Fornication, Gam-ing, Imprisonment, Arrests, Inditements, Levies, Man-slaughter, Oppression, PoundPound breach, Replevin, Straies, Trespasse, and Witnesses.29. These twenty-nine provisions are the Preamble, Actions, Appeales, Ballast,Capitall Lawes, Cattell Corn Fields Fences, Charges publick, Childrens Education,Courts for Strangers, Ecclesiasticall Provisions, Escheates, Forgery or Falsifying,Heresie, Impost, Indians, Inkeepers Tipling Drunkenness, Leather and Shoo-makers,Lying, Magistrates, Marriage, Marshall, Masters and Servants &c, Military Affairs,Rates Fines &c, Records, Strangers Sojourners and Servants, Weights and Measures,Wills, and Wolves.30. These thirteen provisions are Disturbers of the publick Peace, Divorce or aMarriage declared a Nullity, Horses, Incest, Laws without penalty, Mayning wound-ing, Plantations, Prophanation of the Lords Day, Seamen, Sentences of Judgment,Single persons, Strangers complaining, and Stripes.SPREAD OF MASSACHUSETTS LAWMassachusetts Code under other headings. New Haven, as well asConnecticut, failed to include sixty-five of the Massachusetts provi-sions,3 but these omissions do not mean that New Haven any morethan Connecticut was making a fresh codification of New Englandlaw; the same reasons for omission already referred to apply to bothcolonies.Thus, it is clear that the Connecticut and New Haven Codes drewprimarily on the earlier Massachusetts legislation. However, theinfluence of the latter code did not end in New England. When, afterthe conquest of the Dutch, it was desired to frame a code of laws forthe Province of New York, the New England codes were studied asprecedents.?2 In this way, substantive provisions of Massachusettslaw spread southward to New York both directly and via Connecticut.Since, for a number of years, the Duke of York's laws were in effectin parts of New Jersey " and Pennsylvania, 4 the effects of the NewEngland legislation went even further. Although this further spreadof Massachusetts influence is beyond the scope of this paper, it is worthobserving that, although the Massachusetts Code was framed to meetthe conditions of Puritan society, many of its provisions were thoughtsuitable to colonial conditions elsewhere. For example, among theimportant Massachusetts provisions which migrated southward to theMiddle Atlantic colonies was that prescribing that, in intestacy, feesimple lands should descend equally to all children rather than to theeldest son by primogeniture as at common law.35 This basic rule ofmodem intestate distribution was thus in force in several localities wellbefore Thomas Jefferson's attack on primogeniture in 1776.3131. These sixty-five provisions are Abilitie, Ana-Baptists, Benevolence, Bond-slavery, Bounds of townes and persons, Causes small causes, Clerk of writs, Colledge,Condemned, Constables, Criminal causes. Crueltie, Death untimely, Deeds and Writ-ings, Deputies for the Generall Court Drovers, Elections, Farms, Fayrs & Markets,Ferries, Fines, Fish, Freemen Non-Freeman, Fugitives Strangers, Generall Court,Governour, Hydes & Skins, Hygh-wayes, Idlenes, Jesuits, Impresses, Juries Jurors,Justice, Lands Free lands, Liberties Common, Mills Millers, Monopolies, Oaths Sub-scription, Payments, Pipe-staves, Poor, Powder, Prescriptions, Prisoners Prisons,Protestation contra Remonstrance, Punishment, Schools, Secresie, Secretarie, ShipsShip-Masters, Summons, Swyne, Tile-earth, Tobacco, Torture, Townships, Treasure,Tryalls, Votes Usurie Watching, Wharfage, Wood, Workmen, and Wrecks of theSea.32. See GoEnsL & NAUGHTON, op. cit. supra note 4.33. See 23 NEw JERsEY ARCHIVES xiv-xv (1901).34. See generally LOYD, EARLY COURTS OP PENNSYLVANIA 13 (1910); CHARTERTO WILLIAM PENN AND LAWS OF THE PROVINCE OP PENNSYLVANIA iv (1879).35. MASSACHUSETTS COLONIAL LAWS 1660-1672, at 201, cl. 3 (Whitmore ed. 1889);1 DELAWARE BODY LAWS 1700-1749, at 297, 298 (1752) ; 1 COLONIAL LAWS OF NEWYORK 9 (1891) ; 1 ACTS op ASSEMBLY Or THE PROVINCE Or PENNSYLVANIA 33 (1775).These colonies all provided for a double portion to the eldest son, following theMassachusetts provision which appears to have been based on the Mosaic law as setforth in Deuternoimy: see DEUTERONOMY XXI, at 17.36. 1 JEVERSON, WRITINGS 43, 139 (Washington ed. 1853).1958]418 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 106The foregoing demonstrates that detailed investigation of thelegislation of the various American colonies can provide a fruitfulsource of information as to the means and extent of intercolonial legalborrowing. Supplemented by studies of local conditions affecting theacceptance or rejection of the legislation of a sister colony, suchinvestigations can also shed much light on the patterns of life andthought in particular localities.

Spread of Massachusetts Law in the Seventeenth Century

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Spread of Massachusetts Law in the Seventeenth Century

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