In the late summer of 1517, an English lawyer set out to discover America for himself. Inspired by brother-in-law Thomas More's new book
Utopia and the very real expeditions of John Cabot years previous, John Rastell sailed for the "New Found Land" with four ships and a letter of recommendation from Henry VIII.
He never made it. His crew balked at the transatlantic crossing, proposed piracy at one point, and unceremoniously deposited Rastell in Ireland. Eventually returning to England, he sued the purser of one of his ships for compensation, but the lengthy litigation ultimately failed and Rastell went on to other things - among them,
publishing the first English law dictionary in 1523.
The Rastell expedition is fascinating not just on its own terms, but as an early manifestation of an intense but now underplayed nexus linking English lawyers and efforts at American exploration and colonization over the next hundred years. This nexus is, I think, a much needed antidote to the conventional wisdom that lawyers were relative latecomers to America, and that prior to the mid-seventeenth century (and even for some time after that) they played but a minor role in American development. This may be technically true if we look only at lawyers in their capacity as practitioners, but if we look at them in other cultural capacities - as explorers, propagandists, investors, settlers, chroniclers and even early "framers" - it could not be more false.
English lawyers in the 16th and early 17th centuries were ambitious men in an ambitious and increasingly prosperous nation. Surging nationalism and religious upheaval gave them a unique opportunity to help guide the state as the clergy faltered; the rising economic and political fortunes of many members of the Inns of Court in London helped turn their chambers and dining halls into veritable incubators of empire. Rastell's failed expedition was but an awkward beginning. In 1536 Rastell's son (John Rastell the Younger) signed on with over 30 gentlemen "of the Innes of Court and of the Chancerie" for another expedition to Newfoundland that actually made land, if only briefly (according to one account, the early lawyer-tourists soon starved and were only saved when they were able to talk the crew of an incoming well-provisioned French ship into a swap of vessels). In the 1560s
Richard Hakluyt the Elder, like Rastell a member of the Middle Temple, took up the cause of colonization with a vengeance born of Protestant religious fervor, poring intensely over maps and the latest globes and drafting instructions for expeditions planned by the likes of Humphrey Gilbert. Hakluyt (whose nephew, fascinated by his uncle, would later write the famous
Travels) drew into his circle explorers, merchants and financiers who in their turn inspired some ambitious young gentlemen at the Inns to take up exploration personally. Several were among the leaders of the Jamestown expedition of 1607, and a number later died there of starvation. Another Middle Temple stalwart, Chief Justice John Popham, was a prime backer of the Plymouth Company and a personal sponsor of
Popham Colony in Maine, established shortly after Jamestown; that expedition ultimately failed when Popham's death in England robbed it not only of his financial support, but also his personal vision and organizational skill (Popham, by the way, may have been the first "social engineer" in the history of lawyering in America, as he saw colonization as a way of dealing with vagrancy and unemployment at home). Even in the face of famine and disaster in the new American settlements other lawyers took up their pens to chronicle events and defend colonization before an anxious public - thus various manuscripts by William Strachey of Gray's Inn on the early Virginia expeditions and an extensive poem by Christopher Brooke (Lincoln's Inn) on the notorious Indian massacre of 1622. Lawyers, of course, were also active as framers of early colonial government - even apart from Strachey's probable contributions to Dale's Laws for post-starvation Jamestown, Edwin Sandy's involvement in the drafting of the 1618 Great Charter for Virginia (establishing a representative assembly) is well known.
All this could be elaborated but the general point has been made: lawyers played a critical role in bringing about and sustaining early American colonization by their imagination, their investment, their personal bravery, their leadership and their rhetoric. Their record in that remarkable endeavor was mixed at best: their reach often exceeded their grasp and their vision of their new world was inevitably tainted by greed, violence and foolhardiness, but if we are to understand the historical significance of lawyers in the greater American enterprise, we must acknowledge their efforts. It will not do (in the interest of some Whiggish political mythology) to draw an historiographical curtain against them so that lawyers only emerge in America decades later in a limited domesticated form that is more recognizable, acceptable or favorable to us. In fact, lawyers were here from the beginning.
