Exactly 400 years ago today on June 22, 1611, a leader in the colony of Jamestown promulgated the very first code of law ever to be produced for Englishmen in the Americas. Named for its principle creator, Sir Thomas Dale, posterity has remembered it as Dale’s Code. Yes, it happened 400 years ago today. Dale’s Code.
What’s that you say? You’ve never heard of Dale’s Code? These days Dale’s Code may be slipping into obscurity, but in its day and for a long time afterward it was very well known, infamous, in fact. Other codes of early American law were known for excessive reliance on corporal punishments and unreasonable restrictions of the freedoms that Englishmen enjoyed in the mother country. As my colleague David Mao mentioned in his recent post on this blog, John Cotton of the Massachusetts Bay Colony proposed the death penalty for children who strike their parents. But it is Dale’s Code that has always enjoyed a special preeminence as the most reviled code of law in American history.
The code’s main author, Sir Thomas Dale, first arrived in the Jamestown colony in May of 1611. He was a former English naval commander, knighted for his service in the Low-Countries. The London Virginia Company which held the colonial charter in Virginia invited him to serve as deputy-governor of the colony under the governor Sir Thomas Gates. About a month after his arrival, Dale produced a code of law for the colony, partially a revision of a list of rules which Gates had created under the second Virginia Charter, partially a code of conduct for military operations undertaken by the colonists. But the part that stood out from the rest was the criminal code.
What was so bad about Dale’s Code? The chief grievance against it was that it prescribed the death penalty for many, many crimes, sometimes apparently quite minor ones; for example, stealing a flower from a garden, killing a chicken without permission from the general or running away to live with the Indians. It made liberal use of floggings, disfigurements and deprivations to punish wrongdoing. One popular punishment for minor infractions was to have a bodkin pushed through one’s cheek. For capital crimes, contemporaries claim that some colonists were broken on the wheel.
The code also set out the daily obligations of most of the people in the colony in rigorous detail, defining roles and tasks, requiring every one of them to participate in twice daily public prayer on pain of a lashing. The third time a colonist missed prayers on Sunday, he was to be put to death. The climate of tyranny was amplified by the fact that any criticism of the London Company was punishable by death; insubordination of any sort meant death. This, you can imagine, stifled dissent. Making matters worse, Dale seems to have been swift and unmerciful in his application of the law. There was no trial by jury. Judgment was summary and final.
Virginians lived under Dale’s Code from 1611 until 1619, when it was rejected in favor of measures that more resembled the English common law. Dale himself left Virginia in 1616.
Historians struggle to make sense of this period of authoritarian rule in Virginia. One interpretation argues that there were three factors at work. First, the type of man that went to reside in the colonies in the first decade of the Jamestown settlement was not the best suited for colonial life. The gentlemen who came to Virginia were often the idlers and troublesome sons of Lords who were anxious to find some useful, out-of-sight employment for them. The common people who immigrated to Virginia were often drifters, felons and convicts. All of these people were ill equipped for hard work, and unaccustomed to sacrifice for the common good. Discipline among the ranks was so bad that it became an existential issue, especially in a settlement still recovering from the Starving Time. The code was a drastic, but desperately needed corrective if the colony would survive. Second, the code served as useful
propaganda back home where London opinion, especially among investors, was that Virginia was a penal colony existing in a state of complete lawlessness. A published code of law would help to remove that impression. Third, some have argued that Dale worked as a military commander overseeing what was essentially a garrison settlement, that he was trying to subject to martial law a population few of whose members had military training or any expectation of living a military life, and that severe as they were, these measures may have seemed necessary given the military needs of the colony.
Dale’s Code was first published by the secretary of the colony, William Strachey, under the title “For the Colony in Virginea Britannia. Lavves Diuine, Morall and Martial, &c.” London: 1612. The Law Library of Congress has the title in an 1844 reprint by William Force; also in the collection are a 1972 photo-duplication of the original 1612 edition and a modern critical edition prepared by David H. Flaherty.