Abstract
Theory is, among other things, explanation. Something happens, or is imagined. Its known characteristics are observed. Studying the phenomenon, trying and rejecting various hypotheses to create an explanation, the scholar builds a system of cause and effect relationships which makes the phenomenon “understood.” Such explanation sketches may turn out to be sheer illusion, of course, like our famous theories of the business cycle of yore. But theories last so long as they satisfy, even if that is merely until something better comes along. A new theory can give us a new view of a given phenomenon. Moreover, not all of the earlier explanation is necessarily rejected. New theoretical insight may add another dimension that makes the entire explanatory sketch even more satisfying.
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Jonathan Hughes, Social Control in the Colonial Economy, Charlottesville, University Press of Virginia, 1976; “Transference and Development of Constraints Upon Economic Activity,” in Paul Uselding, ed., Research in Economic History, Vol. I, No. 1, Greenwich, Conn.: JAI Press, 1976.
Madison recorded the debate over this issue in his record of the Constitutional Convention: Documents Illustrative of the Formation of the Union of the American States, Washington. D.C.: GPO, 1927. It was proposed that the new national government be given power to veto laws of the states, that state laws “contrary” to the new constitution be “utterly void.” But a more regular review was needed. Madison, paraphrasing himself, wrote: “The case of laws of urgent necessity must be provided for by some emanation of the power from the Nat[ional] Gov[ernment] into each State so far as to give temporary assent at least. This was the practice in the Royal Colonies before the Revolution and would not have been inconvenient, if the supreme power of negativing had been faithful to the American interest.…” (p. 178). The discussion of reviving colonial judicial review generally runs pp. 174-268, but is interspersed with many other subjects. For a more extensive review of the literature on this issue, see Hughes, Social Control, p. 13, n. 12. Explicit procedure for review of colony law was set out in the Virginia charter of 1621: no legislation made by the General Assembly (the House of Burgesses) could be law unless “… ratified and confirmed, in a General Quarter Court of the said Company here in England, and so ratified, be returned to them under our seal. …” (Francis, Newton, and Thorpe, The Federal and State Constitutions, Colonial Charters and Other Organic Laws, Washington D.C., GPO: 1909, p. 3812).
The Virginia charter of 1621 was far more binding on possible legislative originality in the colony. We require the said General Assembly, as also the said Council of State, to imitate and follow the Policy of the Form of Government, Laws, Customs, and Manner of Trial, and other Administration of Justice, used in the Realm of England. (Thorpe, p. 3812. Italics mine.)
On socage tenure, see Social Control, Chapters 5-6. There is an extensive treatment in William Blackstone, Commentaries on the Laws of England, BK. II, Chapters 5-6, Chicago: University of Chicago Press, facsimile edition, 1979.
Social Control, Chapter 6, “Planting the Tenures and Inheritance.” In the 1609 Virginia charter, privater land conveyance was forbidden for seven years. Plymouth colony was also restricted to a seven years’ wait before a complete land division could be made. In both colonies, ways were found to speed up some of the processes of privatization to avoid starvation, since a communal colonization scheme was behind both of our first colonies, and in agriculture the problem of free riding was devastating. They began with “private gardens” (personal allotments, as in modern Soviet agriculture) in Virginia in 1614, and a private division in Plymouth after two years of starving, but with no right to convey either by sale or by inheritance. Full titles to real property apparently were given in Virginia in 1618 and in Plymouth in 1627.
Social Control, Chapter 8, “The Labor Contract: Bondsmen and Slaves.”
White Servitude in Colonial America: An Economic Analysis, New York, Cambridge University Press, 1981.
The original estimate by A. E. Smith was: “If we exclude the Puritan migrations of the 1630s, it is safe to say that not less than one-half, nor more than two-thirds, of all white immigrants to the colonies were indentured servants, or redemptioners or convicts.” (Colonists in Bondage: White Servitude and Convict Labor in America, 1607-1776, Chapel Hill: University of North Carolina Press, 1947, p. 336.) Indentured servants far outnumbered either redemptioners or convicts. The tendency in modern scholarship has been for the top estimate to drift upwards. On the other hand, Farley Grubb, in “The Incidence of Servitude in Trans-Atlantic Migration, 1771-1804” (manuscript), thinks Smith’s estimates too high, and that the true figure for servants was somewhere in the range of 29–45 percent of total white immigration. No one was counting. Jack P. Greene estimates 80 to 90 percent of white immigrants to the Chesapeake before 1700 were indentured servants. (Pursuits of Happiness: The Social Development of Early Modern British Colonies and the Formation of American Culture, Chapel Hill: University of North Carolina Press, 1988, p. 10.)
A Massachusetts law of 1642 reads: “… that all parents & masters do breed and bring up their children & apprentices in some honest Lawfull calling, labour, or imployment, either in husbandry or some other trade, profitable for themselves or the Commonwealth, if they will not, or cannot train them up in learning to fitt them for higher imployments, the sayd Select men with the help of two Magistrates or the next County Court in the Shire shall take such children or apprentices from them, and place them with some masters for yeares. …” (the boys until they were 21, the girls until they were 18 years of age). (William Whitmore, ed., The Colonial Laws of Massachusetts, Boston: Rockwell and Churchill, 1889, p. 136.) Did the Massachusetts saints do such things? They did. Carl Bridenbaugh provides several examples. In Boston in 1656 (or 1657) Goodwife Sammon was told that her son was “… living without a calling, that if she dispose him not of him in some way of employ [the selectmen]… will dispose of him to some service according to the law.” In 1672, the parents of 12 children were told to bind them out “to serve Indentures” or the town would do it for them. (Carl Bridenbaugh, Cities in the Wilderness: The First Century of Urban Life in America, 1625-1742, London: Oxford University Press, 1966 ed., pp. 46-47.)
Social Control, pp. 111-119. The following quotation is from James Kent in Charles M. Barnes, ed., Commentaries on American Law, Vol. II, 13th ed. [1st ed., 1826], Boston: Little Brown, p. *253 [326-327], n. (a): “In Louisiana, slaves are considered as real estate, and descend as such; whereas in Maryland, Virginia, South Carolina and Missouri, they are regarded as personal property. In Kentucky the law on this subject is anomalous. Slaves are for most purposes regarded as personal property, and yet, so far as respects wills, they are by statute declared to be real estate and they descend sub moto to the heir.” In a bequest of November 29, 1770, John Hughes, Quaker of Philadelphia, generalized entrepreneur and one-time Stamp Tax Officer of Pennsylvania, wrote: “There is also two Negro men, one negro woman, and two Negro children left on the place [his estate, Walnut Grove]. Negro Man Jack and his wife Dinah, I give to my son Isaac, and the labour of Julius unless otherwise ordered by me.” (Anna M. Holstein, Swedish Holsteins in America from 1646 to 1892, Norristown, Penn.: Wm. Wills, Printer, 1892, p. 264.) When Isaac died (prematurely) in 1782, his personal estate listed “Two Old Negroes,” Jack and Dinah, rated at £5-0-0 for the pair, but one Negro boy, Pompey, appraised at £40-0-0, among some pages of chattel goods and financial assets. But note that the elder Hughes had been able to convey the “fruit,” the labor, of a slave owned by another [himself, when the bequest was made], just as if the use of a piece of real property had been willed for one life, even though the “ownership” (the fee) was held by another. Had Julius survived, along with Jack, Dinah, and Pompey, and John Hughes’s widow, in 1782, Isaac’s widow could have inherited a life interest in Julius’s labor. That is the meaning of sub moto in this instance: the labor of Julius would pass quietly to the heir like the use of real estate owned in free socage. Slavery was a settled institution in Pennsylvania by the end of the colonial period, even among the Quakers; it took legislation to root it out. It would take a war to get it out of Virginia.
Overt class legislation was common. Sumptuary legislation in Massachusetts of 1651 read: “… no person within this Jurisdiction … whose visible estates … shall not exceed the true and indifferent value of two hundred pounds shall weare any gold or silvar lace, or gold & silvar buttons, or any lace above two shillings per yard … this law shall not extend to the restraint of any magistrate of publicke Officer … their wives and children … or any settled military officer… or any other whose education and imployment have been above the ordinary degree, or whose estate have been considerable, though now decayed.” (Colonial Laws, p. 123.) Bridenbaugh cites a Boston ordinance of 1697 forbidding anyone with annual income of less then £20 from owning a dog. (Cities in the Wilderness, p. 167.)
Vagrancy could put a person on the gallows. (See Social Control, pp. 100-101.) Early on in Massachusetts, idleness by anyone was seen as a social threat. A law of 1633 reads: “It is ordered that no person, Householder or othr, shall spend his time, idely or unprofitably, under paine of such punishment, as the Court shall think meet to inflict. And the Constables of every Towne are required to use speciali care to take notice of offenders of this kind, especially of common Coasters, unprofitable Foulers, and Tobacco takers. …” (Colonial Laws, p. 158.)
In 1771 Lord Mansfield and the Court of the King’s Bench rendered the Somersett decision, which held that slavery could not exist in England. There were 14,000–15,000 slaves in England at that time, and it is said that Mansfield held up his decision as long as possible to allow slave owners to get their properties out of England. (Edward McCrady, The History of South Carolina Under the Royal Government, 1719-1776, New York: MacMillan, 1899, pp. 381-385.)
Social Control, Chapter 9, “The Colonist and the Price Nexus.” Cities in the Wilderness, Chapters V–VI, contains many excellent examples and discussions of the colonial methods of allowing for expansion of commerce under strict nonmarket control.
See Commentaries, Bk.II, pp. 449-450, for market overt.
See Blackstone, Commentaries, Bk. III, pp. 32-33, for courts of pie powder—curia pedis pulverzati.
Social Control, pp. 126-130. Crown officials acted vigorously to establish markets and were jealous of the power. Early acts of the Virginia legislature to alter the times of holding markets and fairs were overturned as interference with the Royal prerogative. (Oliver Morton Dickerson, American Colonial Government 1696-1765, Cleveland, Ohio: Arthur H. Clark 1912, p. 230.) The royal charters of Halifax and Marlboro townships in Vermont contain the establishment of markets and fairs as a part of these little constitutions. The charter of Halifax township (1750), granted by governor Benning Wentworth of New Hampshire, reads: “… as soon as the said town shall consist of fifty families, a market shall be opened and kept one or more days each week as may be thought advantageous to the inhabitants.” What else would one expect? Laissez faire? That was really not in the colonial business mind. It came later. So far as I am aware, unlicensed business was illegal in the towns and cities of colonial America outside of market overt. What was legal was licensing and established markets, with the latter losing out to licensed shop keepers and to caveat emptor and free markets in the long run.
Massachusetts had been transparently sympathetic with Cromwell and the Commonwealth. Massachusetts also refused to let Anglicans have the franchise, or freedom to worship. Accordingly, “… in 1684 the High Court of Chancery declared the Massachusetts charter to be ‘vacated, cancelled, and annihilated.’ “ (Samuel Eliot Morison and Henry Steele Commager, The Growth of the American Republic, New York: Oxford University Press, 1942, Vol. I, p. 82.) Massachusetts had also incurred the royal wrath by minting its own coins, and by purchasing Maine from the descendents of Sir Ferdinando Gorges, the original proprietor, without leave from the crown. From 1685 to 1688, the New England colonies together with New York and the New Jersey colonies were constitutionally placed within The Dominion of New England. After the flight of James II from England, Massachusetts became a royal colony in 1696, by act of Parliament. In that year, the Board of Trade was given control of the external empire, overseen by the Privy Council. Massachusetts was now firmly embedded in the structure of the larger “firm”: the empire.
The Massachusetts colony granted lands in blocs to newly forming congregations as the population expanded. These grants were precursors of the New England township. Each bloc of land was organized with a church at its center, and the community, settled more or less all at once, began de novo as a separate Puritan community. Social Control, pp. 68-69.)
Frontier conditions made such changes necessary. Widow’s dower seemed to have given the New England pioneers especial difficulty. The calculation of the widow’s one-third was not to include unimproved lands, since it was assumed that the widow might not improve them, and even if she did, it might conflict with the plans of the heir: her son. (Social Control, p. 78.) Richard Morris discussed changes in the rules of descent extensively in “Primogeniture and Entailed Estates in America,” Columbia Law Review, Vol. 27, 1927. For example, in 1636, Plymouth passed a law “… that inheritance do descend according to the commendable custom of [the] Engl[ish] hold Est Greenwich” (p. 37). This is socage tenure in gavelkind. The Plymouth law says that widow’s dower will be one-third, but in gavelkind, widow’s dower is one-half.
Farley Grubb, “The Disappearance of European Immigrant Servitude in the United States” (manuscript). A wage system, with contract at will and “assumption of risk” in the contractual wage, would become a necessary foundation of the nineteenth-century industrial labor force. Other wage contracts of the colonial era, like indentured servitude, and even annual wages, would vanish. (Morton Horwitz, The Transformation of American Law, 1780–1860, Cambridge: Harvard University Press, 1977, Chapter VI, “The Triumph of Contract.”)
The continued proliferation of government intervention in the economy right into the immediate antebellum period was the subject of extensive scholarship by scholars who desired to justify the New Deal. See Carter Goodrich, Government Promotion of American Canals and Railroads, 1800–1890, New York: Columbia University Press, 1960; Oscar Handlin and Mary Flug Handlin, Commonwealth: A Study of the Role of Government in the American Economy, Massachusetts, 1774–1861, New York: New York University Press, 1947; and Louis Hartz, Economic Policy and Democratic Thought: Pennsylvania, 1776–1860, Cambridge: Harvard University Press, 1948.
Kent, Vol. II, pp. *324–*325: “It has been frequently held in this country that the English law of the markets overt had not been adopted. …” The problem seems to have been transfer of property in stolen goods. Kent says, p. *324, that any sale in market overt transfers the property: “If goods be stolen, and sold openly [in market overt] the sale changes the property.” In 1780 Pennsylvania passed a law saying that no stolen horse could legally be sold in market overt. The Revolution was on by then. Kent says the Pennsylvania law “… was before it was settled that we had no market overt in this country in the sense of the English common law.” (*324, n. g.) That the markets were established from New England to the south there is no doubt. That they were inadequate to their task was obvious to the settlers once the colonies began to expand.
Actions to recover in courts breaches of simple (unsealed) contracts.
The English, apparently oblivious to the precise implications of American independence, shipped a cargo of 80 felons to Virginia in 1783 (reviving an old habit to which the Virginians had objected for decades before the Revolution). Finally, Congress, in 1788, passed a resolution prohibiting forceable shipments from England. (Smith, Colonists in Bondage, pp. 123-124.)
Philadelphia had begun in 1681 with an elaborate system of market overt. When, after the Revolution, the city was newly incorporated in 1789, this system was freshly imposed with clerks of the market, “assize” of bread, wine, beer, wood, etc. (Edward P. Allison and Boies Penrose, Philadelphia 1681–1887, Baltimore: The Johns Hopkins University Press, 1887, pp. xlvi–xlix; 137.) Yet in the same year, 1789, the master cordwainers of Philadelphia, by then nicely ensconced in their own shops with an extensive “bespoke” trade, passed a resolution that no shoemaker who sold “in the public market of this city” could be allowed membership in the masters association. (John R. Commons, et al., A Documentary History of American Industrial Society, Cleveland, Ohio, 1910, Vol. 3, p. 128.)
Lance E. Davis and Douglass C. North, Institutional Change and American Economic Growth, New York: Cambridge University Press, 1971.
Oliver E. Williamson, The Economic Institutions of Capitalism, New York: The Free Press, 1985.
I believe I do no damage to Chandler’s concept by using it metaphorically in this way. The output of the empire was British imperialism. The mobilization of all resources by all means to increase this output was the throughput of the system. Chandler’s concept is defined in Alfred D. Chandler, Jr., The Visible Hand: The Managerial Revolution in American Business, Cambridge: Harvard University Press, 1977, p. 241.
Davis and North, pp. 28-29.
Williamson, p. 31.
The advantages of merger with the larger firm were remembered nearly a century after the Revolution in the curious case of the Idaho legislature in 1864. They desperately needed some law in a hurry, so they took the old route. When Congress established new western territories, provision was made for a legislature that was empowered and expected to adopt civil and criminal legal codes appropriate for a new frontier commonwealth. Provision sometimes was made, as for Washington, to retain codes already in use in whatever territory each new jurisdiction came from. In some cases—including Montana, which originally had been part of Idaho—informal arrangements were adopted to retain previous codes governing land incorporated into a new territory after Congress neglected to continue a system of civil and criminal law. Idaho, however, had a more complex situation. Formed from parts of Dakota, Nebraska, Utah, and Washington territories, Idaho had no single antecedent territory with legal codes that could cover the area larger than Texas which had become a new territory with no laws identified as applicable. Until Idaho’s legislature adopted English common law, January 4, 1864, pending enactment of a code based on Nevada’s statutes, none of those four codes continued in effect. By 1866, when that oversight finally attracted judicial attention, one accused criminal managed to escape trial and two convicts were released from prison because their crimes violated no law. No one else remained in any of Idaho’s jails because of offenses committed between March 4, 1863 and January 4, 1864, when Idaho lacked any criminal laws to be violated. (Idaho Yesterdays: The Quarterly Journal of the Idaho Historical Society, Vol. 25, No. 1, Spring, 1981, p. 13. Italics added.) One imagines the assembled miners adopting the common law of England by voice vote.
Jonathan Hughes, “The Great Land Ordinances of 1785 and 1787: America’s Thumbprint on History” (manuscript).
Since the right of alienability was unlimited in free and common socage, and the first general distribution of American land into the hands of individual Virginia farmers—“… every man’s portion allotted to him shall be confirmed as a state of inheritance to him and his heyers for ever … in Socage Tenure and not in Capite …”—seems to have occurred in 1618 (or possibly 1615), (Social Control, pp. 55-56), the free-market contract to convey land was firmly on the ground in colonial America even before the Pilgrim landing.
Thomas Perkins Abernathy, Western Lands and the American Revolution, New York: Appleton-Century Company, 1937. The British in 1754 had proposed speeding up the settlement of lands beyond the Appalachians by making 1,000-acre grants per settler (p. 368). Abernathy believed that the actual course of the settlement at the end of the colonial period, by big land speculation companies and squatters with preemption rights, more or less guaranteed slowed-down land settlement. It is hard to believe. There is no doubt what the preferred method of settlement was before the land ordinances of the 1780s came into play, and that was a vigorous market-contract sale of the interior lands by speculators.
Terry Anderson and P. J. Hill, The Birth of a Transfer Society, Stanford: Hoover Institution Press, 1980.
Suppression of sin as a cover for rent-creation by licensing—e.g., the restaurant liquor license—is one of our oldest traditions. Its applications to this day are amazing: for example, the various import restrictions on steel and autos are of this variety of nonmarket control. The public is told that its interests are served because American jobs have been saved at the expense of foreign dumpers, payers of “Asian” wages, or whatever. It sells to this day, but the source was most powerful. The laws of 1641 of Massachusetts provide capital punishment for a string of offenses of a sexual nature, including cross-species, and also should one be a witch or have “consultation with a familiar spirit.” (Colonial Laws, p. 55.) Such unquestioned and absolute power must have seemed to be benevolently employed when it merely required licensing, apprenticeships, and other barriers to free entry into economic activity. Argument that nonmarket controls were necessary to enforce fairness, justice, fair prices and wages, and virtue was not challenged in colonial times; by the public, it rarely is even today. The American origin of this was total. The colonial governments had real power and used it for whatever reasons, no matter now nonsensical.
Davis and North, p. 10.
Weeden, Vol. II, pp. 524–526, records protests by farmers in New Hampshire whose forced sale in market overt put them at the mercy of townspeople who could wait until the end of the day before bidding on farm produce. Throughout New England by the end of the seventeenth century, farmers were permitted to sell off their farms on nonmarket days. (Social Control, p. 130.)
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Hughes, J. (1995). Institutional Choice and Institutional Transformation: Perspectives from the Colonial Experience. In: Ledyard, J.O. (eds) The Economics of Informational Decentralization: Complexity, Efficiency, and Stability. Springer, Boston, MA. https://doi.org/10.1007/978-1-4615-2261-4_5
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