Z dějin právních institucí v raném koloniálním období Massachusetts

In his article the author discusses the origin and evolution of some of the legal institutions in early colonial Massachusetts. He limited himself to the central power and its agencies, to local government, to the judiciary, proceedings, substantive civil law. He paid particular attention to the relationship between the State and the churches, the clarification of which contributes to a better understanding of the legal institutions of the Colony. He summed up his findings in the following conclusions: The central power went through a complicated development. Its legal starting point was the Royal Charter of 1629. Initially there were two sets of agencies: those of the Massachusetts Company with its seat in England and those of the Colony having their seat in the Colony. This twin line was done away with after the Massachusetts Company transferred to America. The result of the move was, namely, the merger of the Company and Colony agencies into one. The next evolution of the central state machinery of the Colony was affected by the constitution of a single chamber legislative assembly in 1634, by the issue of the “Body of Liberties” in 1641 which further defined the powers and interrelationship of the Colony’s central agencies, and finally by the establishment of the two-chamber legislative assembly in 1644. Shaping of the central machinery of state was not only the result of the activities of the Company’s leading shareholders and later of the Colony’s leading group, but also that of the political struggle between the colonists and this leading group. The evolution and organisation of local government in Massachusetts was affected to a considerable extent above all by natural conditions and the necessity of defence against the Indians, to a. lesser extent by other factors, from among which English models can not be excluded. The basic unit of local government were the towns (townships), in which first town assemblies of politically fully qualified colonials (freemen) were constituted, their authority being governed by the Ordinance of 1636. The executive body of the municipal assemblies were the councillors (Selectmen), instituted for the first time as early as in the thirties of the 17th century. Their authority ranged within limits given by the directions of the municipal assembly of the politically fully qualified colonials. The local government was concentrated in the hands of the politically fully qualified colonials. The other colonists had no part in it. Such was the situation not only before the “Body of Liberties” was issued, but also after that. The Body brought no substantial change to the local government. The legislators had adopted the existing local government bodies, including their authority, leaving also unchanged the existing non-democratic practice excluding from participation in the local government persons that were not politically fully qualified. This fact became the object of justified criticism by the free, politically not fully qualified colonists, who finally achieved admission to local government by the Ordinance of 1647. The regulation of the relationship between the State and the churches complied with the actual social, economic and political conditions of the Colony. The relationship between the State and churches as well as the principles, on which the churches were established in the Colony, proceeded from the conceptions of Congregationalism with its ideal of independent churches. Bearers of these ideas were both in England and Massachusetts above all the petit bourgeois classes of society. The class structure of the colonial society is at the same time the key to the understanding of why the Anglican State Church had not asserted itself in the Colony, though attempts in this respect had certainly been made. The Anglican State Church relying on the feudal components of society had, namely, not found the necessary social foundation for its existence. Independent churches in Massachusetts – like in some other colonies – differed to a certain extent rather from the dissident churches in England. The difference was shown mainly in that the colonial churches reverted to the idea of unity of the State and Church, whereas the dissident churches in England did not, nor could they do so for political reasons. The unity of the State and Church was being asserted in Massachusetts by the ruling group of the Colony and by the leading part of the clergy. The part of the clergy striving for the unity of the State and Church wanted to use unity to its benefit and to subject the State to its interests. The Colony’s ruling group was sympathetic to these plans inter alia because it needed the support of the clergy in order to keep its power. The common endeavour of the two components struck, however, resistance of the majority of the colonists, who did not agree with the clergy’s interference in state matters. The colonists were, namely, more interested in a certain weakening of the power of the clergy and in the subjection of the churches to the State. But neither one nor the other tendency could assert itself fully. So the outcome of the encounter of the two contrary tendencies was in the end just the compromise ruling embodied in Art. 95 of the “Body of Liberties”. The judicial system of colonial Massachusetts in the early period began to evolve as early as in the course of the thirties of the 17th century. Its point of departure was the Royal Charter of 1629. Judicial functions were at first exercised just by the Colony’s supreme agencies – by the legislative assembly (General Court) and by the executive council (Court of Assistants). Their powers were so extensive that one would be hard put to it to find in the mother country a body that alone could compete with them as to authority. Development of the economic and political life led to an increase of cases dealt with by courts. This produced soon the request for the establishment of lower courts, to which part of the judicial work could be transferred. In addition to newly constituted general courts special courts appeared, such as: a military commission (Commission for Military Affairs) and the Merchants’ or Strangers’ Court. For some of the courts an analogy might be found in England. It was alike in the instance of juries met with in Massachusetts also as early as in the 30ies. A typical feature of the Massachusetts judiciary was right in the early colonial period the fact that to courts and juries were appointed politically fully qualified colonials (freemen), mostly members of the exploiter class of the Colony. Judicial procedure too reckoned a priori with property, social and political inequality. This was reflected inter alia in the right to an equitable court of justice. It is enough to recall the composition of the courts consisting only of politically fully qualified colonials, frequently members of the wealthiest classes and exploiters of the labour of others. Their impartiality in this situation was not safeguarded. The judicial procedure relied on various sources, whether on the English procedural law, the Old Testament or the practical experience of the colonial courts. In formal respect the Massachusetts procedural law was typical with its lack of refinement, its simplicity and underestimation of procedural forms. Reflected in it is – at least in the early period – the insufficient development of the Colony’s legal life. The Massachusetts civil law was, much like the procedural law, undeveloped and immature in the first decades. The “Body of Liberties” too failed to provide a compact and complete substantive civil law system. The legislators just aimed at certain questions of the property law, capacity to legal acts, reasons for invalidity of legal acts, protection of the interests of creditors and debtors and right of inheritance. Symptomatic for the regulation of the property law is that the code paid more attention to the ownership of immovables, in particular to that of land. It subsumed nationally restricted ownership, with the possibility of expropriation on the one hand and intensive protection of the owner on the other. In the question of capacity to legal acts the code started in principle from the English Law, departing from it, however, in some matters. This applies especially to the legal capacity of married women to legal acts relative to immovables. The “Body of Liberties” strove not only for the protection of creditors, but also for that of debtors. The protection of the debtor’s rights relied mainly on the Old Testament. The regulation of the right to inheritance shows to prove that the legislators endeavoured most to free the right to inheritance from the feudal legal principles and conceptions. In connection therewith they tended to incline to legal principles and forms that were least tied up with feudalism and from which there was but a little step towards the legal forms and principles of the bourgeoisie. Similarly as in the civil law the legislators did not establish a compact system of legal rules in the family law either. The Massachusetts family and matrimonial law was characteristic with rigorous severity, bordering sometime on cruelty. In this respect it was similar to the English family law of the revolutionary period. In common with it is also proceeded from the Old Testament in the first place. This imprinted reactionary features to it to a certain extent. On the other hand, however, the Massachusetts family and matrimonial law bore a number of progressive features as well. This was shown in the institution of matrimony, in the institution of “parental authority” and in the situation of the children on the one hand and in the emphasized interest of the State in the education of children on the other.