History of American Law, Part 2: Early Colonial Courts

The Two Rules

There are two, basic and related rules which govern the development of early colonial courts. First, court systems begin less like the British courts and become more and more similar to them as time passes. Colonial court systems followed the same development rule that most institutions in every time have followed: they started simply and gradually grew more and more complex. Second, the distinction between branches of government that we take for granted today was not a convention of that time. But, gradually, there became more of a distinction between these functions. 

At the time of the founding of Jamestown, England had an incredibly complex court structure, full of highly specialized courts that often overlapped in their divisions of labor. One account by Sir Edward Coke listed about 100 courts, which ranged from royal courts that could hear any kind of case to special local courts like “stanneries,” which only heard cases related to tin mines and tin workers. It certainly didn’t make sense that a sparsely populated and starving population of colonists would replicate the English court system.

Sir Edward Coke
Sir Edward Coke

In the beginning, life in the colonies was harsh. Strict necessity was the mother of the invention of the early New England court systems. The earliest “laws” in the early settlements like Virginia were modeled on martial law. The idea of “separation of powers” did not exist: the same people made laws, enforced laws, handled disputes, and ran the colony. Gradually, as more people moved into the colonies, these duties were split up.

Early Courts Were Basically Corporations

The Charter of Massachusetts Bay in 1629 is a typical charter modeled after the charter of large trading companies of the time. The charter granted land and mentioned the government of the land, which was not typoical of a corporate charter, but in most other respects it functioned like a business. The “Governour and Companye, and their Successors,” were to have “forever one comon Seale, to be used in all Causes and Occasions of the said Companye.” The officers and all of the freeman made up a general court, which was a functional equivalent of meeting of the stockholders. The court of assistants (governor, deputy, and a few assistants) functioned like a board of directors. This set up was also not unlike the structure of many small English towns, called boroughs.

The people in charge of the Company had rule making authority under the charter, but they were not permitted to make rules that were “contrarie or repugnant” to the laws in England. This phrase is also used in the Maryland charter of 1632, although no one today knows quite what it means. In any event, no colonist was under the impression that the entire body of English law was to be imported to the New World.

Massachusetts Court Development 

One of the earliest recorded courts was at a court in Boston on June 14, 1631, which handled all sorts of business. It mandated that no one could hire anyone to be a servant for less time than a year, unless the person was already a settled housekeeper. It fined someone for stealing someone else’s canoe. It handled town planning business and bound apprentices to tradesmen.

This undifferentiated structure could’t hold with an increasing population. By 1639, the court structure of Massachusetts would not look terribly odd to a modern lawyer. There was a general court, which acted as both a legislature and as the highest court. It heard mostly appeals, although its exact jurisdiction was a bit fluid. The court of assistants took original jurisidiction (the right to decide that kind of case) in some topics, like divorce. Then came county courts, which heared civil and criminal causes, except for any criminal trial with a life sentence or banishment (or cutting off a limb)–those went to the court of assistants.

The county courts were never just courts, but were always part of the government administration, dealing with probate, road repair, paying ministers, punishing anyone who interfered in church elections, punished heretics, dealt with town orders, employment and wage laws, helping the poor, managing the jails, townhalls, and even dealing with price gougers. Essentially, the county court handled everything that early settlements needed handling locally.

There were even smaller courts beneath the county court in Massachusetts, sometimes cobbled together as needed to handle small cases or special matters. These were run by magistrates, who were something like an English justice of the peace. Small claims would often go through these courts and later they heard cases involving public intoxication. They could administer oaths and perform marriages. They could even whip wandering Quakers who strayed in from Pennsylvania. As time went on, they became more formalized and operated under the seal of the colony. By 1692, local government was completely secularized and the magistrate became known as the “justice of the peace.”

This plan of organization was roughly the same in New Hampshire, Connecticut, and Rhode Island. In Virginia, the development was essentially the same, although different names were used.

Virginia Court Development

Sir Thomas Dale
Sir Thomas Dale

Dale’s code— the “Lawes Divine, Morall and Martiall” of 1611— (full text in modern English here) were laws at the early, military stage. They set up an undifferentiated system of authority. When Sir Thomas Dale arrived from England in 1610, part of his mandate was to “… proceed rather as Chancellor then a judge, rather upon the natural right and equity then upon the niceness and letter of the law.”

The “Martiall” part of the code dealt with the duties of soldiers, and also reflected its military origins. The “Divine” and “Morall” parts consisted of rules about crime and punishment, and special regulations for the colony. It wasn’t lawyer’s law or English law in the usual sense, but it also wasn’t completely foreign. There are similarities between this code and English rule in other outlying areas, like Ireland. On paper, the code seemed very harsh; it threatened death for trivial crimes like stealing public stores or boats.

“Many of these punishments were carried out. One man who stole a few pints of oatmeal had a needle thrust through his tongue and was then chained to a tree until he starved.”

But, this harshness simply reflected how important these things were in a dangerous colony. Plus, the makeup of the Virginia Company was a rather rough crew that consisted in large part of children, convicts, servants, and rebels. 

Eventually, the severities of Dale’s code were no longer needed. The code was gone by 1620. A couple of years later,  the forerunner of the Virginia legislative assembly was already in operation. By the late 1630s, Virginians were making laws for themselves. But, the savagery of Dale’s code did not vanish completely and was ultimately felt in the governance of slaves. 


The highest court in Virginia was more than a court. The governor and council (and the house of burgesses) decided cases and also made rules. Governor and council functioned as a “Quarter Court” (because they met four times a year). By 1661, it only met twice a year, now called a “General Court.” The general court handled the trial of serious crimes and reviewed cases initially decided in the county courts.

The county courts began as “Monthly Courts” in 1623, manned at first by “commissioners”; the name was changed in 1642. By 1661, commissioners were called justices of the peace . The county courts, as in Massachusetts, had a much broader role than contemporary courts, handling large administrative works— collecting taxes, building roads, and regulating taverns and inns. They also handled probate affairs.

The courthouses themselves were not very grand. In some places, there was no actual courthouse at all. The Middlesex, Virginia county court sat at Justice Richard Robinson’s house. The county paid him rent. Men and women “walked or rode the rutted, dusty path” to his house, when they had business to lay before the court.

Maryland Court Development

Early court organization in Maryland was unrealistic. On paper, the proprietors established a whole battery of courts after English models: hundred courts and manorial courts, courts of hustings and pie powder in St. Mary’s and Annapolis, county courts, courts of oyer and terminer, a chancery court , a court of vice-admiralty, and a prerogative court, among others. Some of these probably never even met. Records of only one manorial court survive, sitting between 1659 and 1672. 

New York Court Development

New York’s first legal institutions “schouts” and “schepens” were conducted in Dutch.  It took longer to assimilate the colony than to dominate it politically when passed into English hands mid-17th century. In New York City, the old court of burgomasters and schepens changed its name to the “Mayor’s Court,” in 1665. English procedure was supposedly introduced at this time, but Dutch elements lingered on. As late as 1675, when a plaintiff “declared in action of the Case,” the defendant “read his answer and Soe replickt and duplickt, upon which, a Jury was empanneled,” a strange mix of Dutch teminology and English remedy. But, by the early 1680s the court operated solely in English.


In Pennsylvania, William Penn had a Quaker’s distaste for formal law and litigation. Penn’s laws (1682) called for appointment of three persons in each precinct as “common peacemakers.” The “arbitrations” of these peacemakers were declared to be as “valid as the judgments of the Courts of Justice.” These peacemakers were an early example of a certain Utopian strain in American legal culture. This tendency occasionally manifested itself in prohibiting lawyers or in attempts to reduce or abolish formal law. 


Some seventeenth-century colonies organized their systems in ways somewhat different from the patterns in Virginia and Massachusetts. But the overall structures tended to be the same in practice, if not in name.

The “grand council” of 17th century South Carolina was the general court of that colony, hearing matters of probate, chancery, admiralty, and common law. It dealt with the defense and safety of the colony, allocated lands, and laid down rules and regulations.The grand council had an interesting fate. Labeled as a tool of the proprietors’ interests, it became unpopular with those leading citizens who were opposed to the proprietors. In short, it was associated with one class, one party, and one economic interest. To defeat that interest meant to overthrow the court . By 1702, the proprietary government collapsed and the court never met again. 

In the province of East New Jersey, a “court of common right” was established in 1683 “to hear, try and determine all matters, causes and cases, capital, criminal or civil, causes of equity, and causes tryable at common law.” The court had a unique name; but its broad jurisdiction was otherwise not unusual in the English-speaking colonies.




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