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.



A Delightful Little Essay on Scotland: What is Scotland Anyway?

As we are looking at history of law for the next few months, I thought I would share a fun (and funny) essay by my friend Craig Hughes on Scotland. Craig is qualified to discuss this topic, as he is Scottish (not Scotch you Yanks! That’s a tasty beverage, not a person!). He also lives in Scotland. How do I know Craig? Well…my sister went to school at St. Andrews in Scotland. One of her roommates for three years, Caroline, has a sister, Louisa, who is married to Craig. We’ve met in person one time, five years ago at a wedding, but through the magic that is Facebook, I’ve been following the daily ups and downs of Scottish life. Craig also has a great music channel on YouTube, which I highly recommend. 


What is Scotland Anyway? 

by Craig Hughes

Ask a random gadgie on the street and they will doubtless tell you, quite correctly, that it’s a collection of almost 800 islands with fairly temperate weather whose inhabitants have a proclivity for porridge. But is it more than that? Is it less than that? Is it more or less than that?

Imagine, if you will, a large slab of ice. Not just large actually. Massive. Enough to stock your ice tray for over a billion years. Hunners of ice. Well, this big slab of ice entirely covered what we now know as Scotland for a long time until about 11,000 BC. Whoever lived there before that- the original Scots if you like- are sadly lost to all. No museum supposes at their hairy frames, Neanderthal hands, their… err…dreamy eyes- for, like the ice itself, they simply melted away. Boo hoo. But there sure was a lot of ice. So much ice that there wasn’t a lot of sea. Indeed, the island we now call Great Britain was linked to the European mainland (a time period known as Farage’s Lament), and the Orkney islands and much of the Inner Hebrides were just bits of mainland Scotland.

As the ice melted, some lonely yet hardy wanderers made their way into Scotland. The climate wasn’t ideal so their progress was a bit slow. In fact, they lagged behind their southern European counterparts considerably, presumably because they “couldnae be arsed” painting in their caves because it was “f**king freezing’”. However, soon enough the climate improved a bit and these early hunter-gatherers caught up with their contemporaries elsewhere- arrows, bead necklaces, urns, even an early prototype of the Sony CD Walkman were all found (at least according to Wikipedia). A while after this, these settlers started getting cocky and departing radically from the norms of the day. 500 years before the Great Pyramid of Giza and a millennium before Stonehenge, these folks had created huge stone monuments and even an entire Neolithic village made of stone in Orkney in about 3000 BC.

A long while after this, in AD 71 those naughty Romans came along and started writing things down. I’m not sure what the Latin for “savage bawbag” is, but we can imagine it was used fairly regularly in their reports. They also started naming all the places they came across. So the nameless clump of land at the bottom of the island (which we now know as England and Wales) was called ‘Britannia’. The Romans initially were going to bundle Scotland in with this tag but, after considerable resistance including a night attack which nearly wiped out the entire Roman 9th Legion, the Romans decided to call them Caledonians (meaning ‘hard/tough people’), build a big wall at the top of Britannia and then, probably quite sensibly, retreat. Thus, Scotland was born. Except it wasn’t called Scotland yet, it was called Pictland, or the Democratic People’s Republic of Pictavia or something.

After this period, historians can’t decide whether some Irish folk came to Scotland and started speaking Gaelic, or whether some Scottish folk started speaking Gaelic and pretended that some Irish folk had come over and started speaking Gaelic. Either way, Pictland started getting called Alba. At this point you’re probably thinking “Ahh! Alba- the sister brand to electrical company Bush that sells exclusively through Argos?” To which I’d reply, nice try- and well done on your knowledge of substandard electrical goods- but the two are unrelated. After an ill-advised interlude of being called Albania, typified by a cult following of the comedy of Norman Wisdom, the name of Scotland (from ‘Scoti’ meaning ‘dark because of the mist’) was eventually decided upon in around 889. England followed suit in the naming stakes in 927, meaning that Scotland is technically older than England- the older sibling showing the way as it were. From Adam Smith’s economics to being shite at the World Cup.

By the 12th century, the east of Scotland was talking English whilst the rest spoke Gaelic. For a good 200 years from this period, things were going pretty, pretty, pretty good. Scotland had a long unbroken line of Kings, it had successful trade, and there was relative peace with England. But then the last of these Kings, Alexander III- like a right arsehole- fell off his horse and died. This left Scotland in disarray with many noble families vying to be crowned. For a brief period the late King’s granddaughter Margaret was made Queen- at the entirely sensible age of 3- but then she went and died anyway and the whole rammy started again. How bloody inconsiderate.

This is when things got hairy. Edward I of England stepped in to help with the negotiations, apparently under the guise of being an impartial adviser. A royal business consultant if you will. However, during these negotiations he somehow managed to ordain himself as ‘Lord Paramount of Scotland’. Scottish noblemen of the time described this as “a bit of a dick move” but conceded “I wish I’d thought of that”. When Edward demanded that his new Scottish acquisition serve in his army against the French, the Scots said “ye can bugger that for a poke o’ chips ya rat” and instead formed an alliance with the French, which lasted for centuries, now referred to as the ‘Auld Alliance’. To this day, the French accent does things to a Scottish person that should not be discussed in polite company.

Unimpressed, and perhaps more than a little hurt by this Jock-Jacques love-in, Edward dropped the pretence and Lord Paramount bullshit and simply crowned himself King of Scotland. This, however, meant war. A tall and muscular archer named William Wallace and the less snappily titled (and so perhaps frequently forgotten) Andrew Moray led the Scots in a series of battles against the vastly more numerous English armies as well as brutal raids against innocent English folk. Despite some decisive victories, including a war tactician’s dream of a triumph at Stirling Bridge in which the bridge itself was used to funnel the large English army into manageable bite-size chunks, both would die for their cause, Moray at the only-just-mentioned Stirling Bridge. Wallace was betrayed by a Scottish knight (let’s call him McJudas) and was handed over to Edward I, who- clearly irked- had him dragged naked by a horse through London by the heels, strangled by hanging, released alive, chopped his willy off, whipped his bowels out, burned them in front of him, beheaded him and sent different bits of him to different parts of the UK on display as a warning. A sort of ‘Execution Roadshow’. When folk asked Edward afterwards whether he’d gone a bit over the top, he replied that “Lethal Weapon 4 was shite” and so “he was asking for it”. Nobody knew what he was talking about but they laughed anyway, lest they be subject to a swift knobectomy too.

Surprisingly undeterred by all this, a bit of a psycho with a massive beard called Robert The Bruce continued the campaign for independence and pure battered Edward II’s army at Bannockburn, even getting his own hands dirty by facing off with the Earl of Gloucester’s nephew on horseback and promptly splitting the nephew’s skull with an axe. Reportedly, he shouted “WHAMMO!” as he did it, his own troops describing him as “a pure raj” and “an actual fruit loop” after witnessing the face-off. The battle would prove decisive- Edward himself fleeing the battle as well as Scotland and, after writing the world’s first declaration of independence, Scotland became an independent country again in 1327. The fighting, unfortunately, was not over. Joan of Arc called upon Scotland to join France against the English during the Hundred Years War, which they promptly did (that accent again)- assisting in France’s victory.

Perhaps to make amends for being fairly bad neighbours to each other, in 1502, a Scottish King bloke called James IV signed a treaty of perpetual peace with England. By a stroke of luck and not an insignificant amount of inbreeding, a century later Scotland’s James VI also inherited the thrones for England and Ireland, and thus the ‘union of the crowns’ came about. This generally went down quite well and literature flourished- old Willy Shakespeare was knocking about at that time. It didn’t go down so well with a chap called Guy Fawkes who, quite rudely if you ask me, tried to blow him up. Blow up James that is, not Willy Shakespeare. But perhaps if Guy, like me, had been forced to memorise entire passages from The Merchant Of Venice at school and got in trouble for mispronouncing the- apparently incredibly important- word ‘thither’ then his target may have justifiably been different. After the union of the crowns a few attempts were made to create a full political union, but this was unpopular on both sides of the border. As it stood, there was no real impetus for change.

But in 1698, some Scots made a very bold- and foolish- move. They attempted to secure a trading colony in Panama, which was very prescient (think Panama Canal) but terribly executed. A load of Scottish landowners and nobles invested in it and lost BIG BUCKS. On top of this, in 1705 England passed the not-very-nice ‘Alien Act’, which essentially eroded the rights of Scots living in England and put an embargo on Scottish imports into England and its colonies (about half of all Scottish trade). Due to the nobles being skint, the Alien Act subduing any prospects of economic recovery and threats of another English invasion, it didn’t take much to convince the Scots elite to back a political union with England. The English elite’s motivation was security- the closer the bond, the less likely Scotland would be to crown a different King and form new alliances against England. But for the ‘man on the street’ if you will, the reaction was quite different. The English, quite rightly, were unhappy that they were now bound to a poor, economic collapse of a nation with few roads and fewer ships. It was like being chained at the ankle to a destitute drunk whom you had to pay to not punch you in the face. A scene very reminiscent for anyone who has ever had a night out in Livingston.  And as for the Scots- their country had just been sold for the private gain (or recompense) of a few Scottish nobles. There were riots. Daniel Defoe, working as a spy, noted: “For every Scot in favour there is 99 against”. Due to the ongoing violent demonstrations, martial law was imposed.

Tensions eventually simmered down and in the ensuing decades, trade flourished, particularly with America. Scotland benefitted economically from the highly moral tobacco trade among many others (surprisingly few Scottish folk ballads about those times…”Och we sold a muckle load o’ opium tae the Chinese, so we did, so we did…”  However, as the wealth between the lowlands and the highlands drifted further apart, support grew for the ‘Jacobites’- a highland movement in support of a Stuart King. They gained the support of some lowland Scottish, northern English, Irish and French troops and fought a series of battles against the loyalists but ultimately met their demise at the Battle of Culloden. The Jacobite leader, an 11 year old Italian girl called Bonnie Prince Charlie, fled the country with sombre dignity- dressed as an Irish maid called Betty, providing the inspiration for the ‘Skye Boat Song’. Charlie fled to France and rather than become King of Scotland, made do with banging his first cousin instead.

With the British government unwilling to risk such action again in the future, the ‘Highland Clearances’ took place, in which highland families were evicted and exiled en masse to as far afield as North America and Australasia. The farming and clan systems were broken down and instead sheep raising was introduced. The Gaelic culture and way of life was devastated. The clearances would have deeper repercussions centuries later, when Scottish schoolkids would have to read countless f**king books about their struggle in order to pass Standard Grade English. Brrrr. But anyway, the somewhat horrific acts were justified with the British population at large through the suggestion that those being exiled were racially inferior. Indeed, the eternally socialist rag The Scotsman wrote at the time: “Collective emigration is, therefore, the removal of a diseased and damaged part of our population. It is a relief to the rest of the population to be rid of this part.”

But this is all a bit doom and gloom! When does it get better for Scotland? Well, the Scottish Enlightenment and the Industrial Revolution came along and Scotland played a crucial role in the modernisation of the world. From the aforementioned Adam Smith (the ‘Father of Modern Economics’), to scientists such as Maxwell and Kelvin, to inventors such as Watt and Murdoch, to poets and authors such as Scott, Burns, Stevenson, Barrie and Conan Doyle, to artistic visionaries such as Charles Rennie Mackintosh, Scotland was on the world map. The Clydeside shipyards became the world’s shipbuilding capital, Glasgow itself an industrial powerhouse, Edinburgh an intellectual haven. Among many other things, Scotland would give the world radar, thermodynamics, penicillin, the steam engine, the bicycle, the telephone, Peter Pan, curling, beta-blockers, refrigerators, the television, flushing toilets, kaleidoscopes (and therefore the completed lyrics of ‘Lucy In The Sky with Diamonds’ by The Beatles), insulin, MRI scanners, Sherlock Holmes, lawnmowers, Bovril, colour photography, Grand Theft Auto, the Bank of England, whisky and golf. Not only that, but they would never, ever bring these things up at any given opportunity.

But despite this dizzying success- as part of the union- there was still that niggling independence issue. In 1853, a movement to give ‘home rule’ to Scotland was formed by a group- rather ironically- linked closely to the Conservative party. It continued to gain support until eventually in 1913, the UK Prime Minister of the time, Herbert Asquith, decided that home rule was indeed the best option for Scotland. He even rather surprisingly described the centralising of power to Westminster as the “worst of all political blunders”. However, before it could come into effect World War I came along and it was put on the backburner.

The issue gained steady support again until 1949 when a petition for home rule was signed by 2 million Scots. Quite a feat before online petitions, as you’ll no doubt appreciate (#KONY2012 4 LYFE). The petition was ignored by the UK government so some students nicked the Stone Of Destiny from Westminster Abbey in retaliation. No mobile phone footage of the prank exists but reportedly the students described it as ‘megalolz’ and that they ‘almost chundered on it with excitement’.

In the 1960s, as the British Empire came to an end and imperialism went somewhat out of fashion, the question of independence came up yet again. To complicate matters, in 1970, oil was found off the coast of Scotland. This brought a huge swing in support to the Scottish National Party who used the fairly shameless slogan “It’s Scotland’s Oil”. Concerned by this upsurge, the Conservative government of the day had a leading economist named Professor McCrone complete a report to check the viability of an independent Scotland, hoping that it would be exceedingly negative so that it would knock the SNP down a peg or two. Unfortunately for them, the report conceded that an independent Scotland would have had one of the strongest currencies in Europe, giving a tax surplus that was ‘embarrassing’ and making it as ‘rich as Switzerland’. The government, of course, shared the findings with the Scottish people and humbly begged that they remain in the union. Only joking! The report was given official ‘secret’ status and quietly shelved. It didn’t see the light of day until 2005 when it was released under Freedom of Information. Naughty!

By 1979, the idea of home rule had nonetheless gained enough momentum for a referendum to be held- this time for Scotland’s own devolved parliament. Scotland voted yes. But a clever amendment was made that meant that at least 40% of the total electorate would have needed to vote yes. There was a 63% turnout and so only 33% of the total electorate voted yes. Perhaps unsurprisingly, the ‘total electorate’ lists were well out of date- like a mouldy brie in a dead man’s pantry. Indeed, there were plenty of dead men on the lists- so people who didn’t vote, or had moved, or had two houses, or- yes- had died, were in effect counted as ‘No’ voters. Scotland didn’t get its parliament. Naughty².

Fast forward to 1997 and another referendum was eventually held on whether Scotland should have its own parliament. This time the result was a lot more emphatic- with 75% voting yes. In 1999 the Scottish Parliament held its first session since 1707. In 2004 it moved to a purpose built parliament building. In an embarrassment for the Scottish people, the architect’s actual designs were muddled with a scrumpled up piece of paper on which he’d doodled a misshapen mess and entitled ‘The Gammiest Building Design Ever- Lol’. Somehow, the latter was inexplicably recreated and upon its grand opening, the resounding boos could be heard in Novia Scotia for up to 8 weeks.

Another 10 years on and the SNP were victorious in Scotland with independence as one of their key objectives. After achieving a second, more emphatic, victory in 2011- this time with an independence referendum as a pledge- it was agreed between the two parliaments that an independence referendum would take place in September 2014. What happens next? Who knows. 

I shall end by delving back into ancient history for a moment. In AD 83–84, at the Battle of Mons Graupius between the Romans and the Caledonians, Tacitus wrote that before the battle, the Caledonian leader, Calgacus, gave a rousing speech to the ‘red-haired and long-limbed’ troops in which he called his people the “last of the free”. It seems the Scots had a taste for independence back then too. After the battle, the Roman Agricola apparently told Tacitus- “You know what? I’m retreating. I’ve got this niggling feeling in the back of my mind that- even if we do conquer them- these bastards won’t stop banging on about it for the next 2000 years. We leave tomorrow.” Wise man, that Agricola.