A History of American Law 4th Edition

Lawrence M. Friedman
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A History of American Law
 A History
of American Law
Fourth Edition

L AW R E N C E M . F R I E DM A N

1
 3
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© Lawrence M. Friedman 1973, 1985, 2005, 2019

Renewed © Lawrence M. Friedman 2001

First Edition published in 1973 by Touchstone, an imprint of Simon & Schuster, Inc.
Second Edition published in 1985 by Touchstone, an imprint of Simon & Schuster, Inc.
Third Edition published in 2005 by Touchstone, an imprint of Simon & Schuster, Inc.

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Library of Congress Cataloging-​in-​Publication Data

Names: Friedman, Lawrence M. (Lawrence Meir), 1930– author.
Title: A history of American law / Lawrence M. Friedman.
Description: Fourth edition. | New York, New York : Oxford University Press, [2019] |
Includes bibliographical references and index.
Identifiers: LCCN 2019007416 | ISBN 9780190070885 ((hardback) : alk. paper) |
ISBN 9780190070892 ((pbk.) : alk. paper)
Subjects: LCSH: Law—United States—History.
Classification: LCC KF352 .F7 2019 | DDC 349.7309—dc23
LC record available at https://lccn.loc.gov/2019007416

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To Leah, Jane, Amy, Sarah, David, Lucy, and Irene
 Contents

Preface to the Fourth Edition xv

Prologue xvii

I . T H E B E G I N N I N G S : A M E R IC A N L AW
I N T H E C O L O N IA L P E R IO D

I I . F R OM T H E R EVO LU T IO N T O T H E M I D D L E
O F T H E N I N E T E E N T H C E N T U RY: 1 7 7 6 – 1​ 8 5 0

1. The Republic of Bees 77

2. Outposts of the Law: The Frontier and the Civil-​Law Fringe 127
3. Law and the Economy: 1776–​1850 147
4. The Law of Personal Status: Wives, Paupers, and Slaves 173
5. An American Law of Property 213
6. The Law of Commerce and Trade 241
7. Crime and Punishment: And a Footnote on Tort 263
8. The Bar and Its Works 289

I I I . A M E R IC A N L AW T O T H E C L O SE
O F T H E N I N E T E E N T H C E N T U RY

1. Blood and Gold: Some Main Themes in the Law in the Last Half
of the Nineteenth Century 321
2. Judges and Courts: 1850–​1900 355
3. Procedure and Practice: An Age of Reform 373
4. The Land and Other Property 391
5. Administrative Law and Regulation of Business 417
6. Torts 443
7. The Underdogs: 1850–​1900 463
viii Contents

8. The Law of Corporations 495

9. Commerce, Labor, and Taxation 513
10. Crime and Punishment 551
11. The Legal Profession: The Training and Literature of Law 591
12. The Legal Profession: At Work 617

I V. T H E T W E N T I E T H C E N T U RY

1. Leviathan Comes of Age 643

2. The Growth of the Law 661
3. Internal Legal Culture in the Twentieth Century: Lawyers,
Judges, and Law Books 703
4. Regulation, Welfare, and the Rise of Environmental Law 729
5. Crime and Punishment in the Twentieth Century 749
6. Family Law in the Twentieth Century 769

Epilogue: A Final Word 779

Bibliographical Essay 783
Index 797
 Detailed Contents

Preface to the Fourth Edition xv

Prologue xvii

I . T H E B E G I N N I N G S : A M E R IC A N L AW
I N T H E C O L O N IA L P E R IO D
The Skeleton of Colonial Law: The Courts 6
Civil Procedure 24
Land Law 26
Succession at Death 32
Criminal Law 35
Government, Law, and the Economy 44
Commerce and Labor 48
Slavery 54
The Poor Laws 59
Statute and Common Law in the Colonial Period 60
The Legal Profession 63
The Literature of the Law 71

I I . F R OM T H E R EVO LU T IO N T O T H E M I D D L E
O F T H E N I N E T E E N T H C E N T U RY: 1 7 7 6 – 1​ 8 5 0

1. The Republic of Bees 77

Revolutionary Ardor 77
Constitutions: Federal and State 86
The Judges 96
The Organization of Courts 110
Civil Procedure 115
The Law of Evidence 123

2. Outposts of the Law: The Frontier and the Civil-​Law Fringe 127
The Civil-​Law Fringe 137

3. Law and the Economy: 1776–​1850 147

Laissez-​Faire and Its Limits 147
The Business Corporation 159
x Detailed Contents

4. The Law of Personal Status: Wives, Paupers, and Slaves 173

Marriage and Divorce 173
All in the Family: Women’s Rights and Property Rights 180
Adoption 183
Poor Laws and Social Welfare 184
Slavery and African Americans 190

5. An American Law of Property 213

The Land: A National Treasure 213
The Law of Private Land 218
A Cyclical World: The Law of Mortgages 227
Succession: Wills and Trusts 230
Intellectual Property: Patents and Copyrights 236

6. The Law of Commerce and Trade 241

A Federal Question: Admiralty and General Commerce 241
Sale of Goods 245
Bankruptcy and Insolvency 251
Contract 257

7. Crime and Punishment: And a Footnote on Tort 263

Penal Law and Penal Reform 263
Walking the Beat 269
The Substantive Law of Crimes 275
The Crime of Punishment: The American Prison 278
A Footnote on Tort 283

8. The Bar and Its Works 289

The Bar 289
Organization of the Bar 300
Legal Education 303
The Literature of the Law 308

I I I . A M E R IC A N L AW T O T H E C L O SE
O F T H E N I N E T E E N T H C E N T U RY

1. Blood and Gold: Some Main Themes in the Law in the Last Half
of the Nineteenth Century 321
The New Era 321
Organic Law 326
State Constitutions 330
The West 345

2. Judges and Courts: 1850–​1900 355

The Judges 355
Judicial Organization 367
 Detailed Contents xi

3. Procedure and Practice: An Age of Reform 373

Mr. Field’s Code 373
Appellate Courts 379
Codification and Reform 383

4. The Land and Other Property 391

The Transformation of Land Law 391
The Public Land 393
Property Law and the Dynasts 400
Landlord and Tenant 405
Mortgages 406
The Decline of Dower 408
A Tangle of Titles 409
Intellectual Property: Patents, Copyrights, and Trademarks 411

5. Administrative Law and Regulation of Business 417

The Coming of the Bureaucrats 417
Regulating the Infrastructure: Banks, Insurance, and Railroads 419
Occupational Licensing: And the Pull of Public Health 430
The Great Antitrust Act 437

6. Torts 443

7. The Underdogs: 1850–​1900 463

The Dependent Poor 463
Family Law and the Status of Women 471
The Races 482

8. The Law of Corporations 495

Corporation Law: Freedoms and Restraints 495
A Discordant Addendum: The Municipal Corporation 507

9. Commerce, Labor, and Taxation 513

Contract 513
Negotiable Instruments 517
The Law of Sales 520
Usury Laws 522
Insurance 524
Bankruptcy 527
Admiralty 529
Labor and Law 532
Federal Taxation 543
State and Local Tax 545
Death Taxes 548
xii Detailed Contents

10. Crime and Punishment 551

The Many Faces of Criminal Law 551
The Statute Law of Crimes 561
Victimless Crimes 564
Crime, Crime Rates, Insanity, the Guilty Mind 571
Punishment and Correction 576

11. The Legal Profession: The Training and Literature of Law 591
The Rise of the Law School 591
The Literature of the Law 605
Legal Periodicals and Casebooks 613

12. The Legal Profession: At Work 617

The Nimble Profession 617
Organization of the Bar 633
Admission to the Bar 637

I V. T H E T W E N T I E T H C E N T U RY

1. Leviathan Comes of Age 643

Center and Periphery 645

2. The Growth of the Law 661

Welfare 661
The Liability Explosion: Workers’ Compensation 663
More Explosions: Tort Law 667
Constitution, Rights, and Civil Liberties in the Twentieth Century 673
First Nations 687
Asian Americans 689
Hispanics 690
The Revolt of Otherness 692
Freedom of Speech 696
Religion and the Law 699

3. Internal Legal Culture in the Twentieth Century: Lawyers,

Judges, and Law Books 703
Legal Ethics 706
The Organized Bar 707
Legal Education 709
Legal Literature 711
The Twentieth-​Century Bench 718
 Detailed Contents xiii

4. Regulation, Welfare, and the Rise of Environmental Law 729

Land Use 729
Environmental Law and the Environmental Movement 732
Intellectual Property 735
The Welfare-​Regulatory State 737
Business Law and the Law of Business 743

5. Crime and Punishment in the Twentieth Century 749

Crimes of the Century 751
Decriminalizing Sex and Vice 753
Defendants’ Rights 761
The Death Penalty 764
Crime Waves and the National Response 767

6. Family Law in the Twentieth Century 769

The Law of Divorce 770

Epilogue: A Final Word 779

Bibliographical Essay 783
Index 797
 Preface to the Fourth Edition

More than ten years have gone by since I worked on the third edition. Law, like
life, never stands still. Not only have many things happened between then and
now, but the scholarship has continued to grow exponentially. I have tried to
take as much of the new scholarship into account as I could, and I have also
substantially rewritten the entire text, trying to improve phrasing, style, and
emphasis, and sometimes revising my train of thought.
The basic structure remains as it was; I think the structure continues to make
sense. In general, American legal history is a flourishing field. The amount of
work done, and being done, is astonishing. Nobody can really keep up with the
literature—​and it might be useless even to try. This flowering of scholarship is,
to be sure, a sign of progress; it shines new light into a lot of dark historical cor-
ners; it revises a lot of old, hasty, or obsolete notions. But all of this, alas, makes
a work of synthesis, like this one, all the more difficult. I have had to omit a lot.
American legal history is extraordinarily complex. There are fifty states, each
with its own legal history. There are native tribes; and the anomalous position
of Puerto Rico, Guam, and various smaller dependencies. And on top of all of
them, there is a federal system which has grown to monstrous size. The sheer
amount of “law,” even in the most primitive sense, is also of monstrous size,
and shows no signs of abating. We are a law-​ridden society, for good reasons
and bad. I hope I have been able to tell a coherent story, to find patterns in this
chaos of detail, despite the colossal bulk of material that is at least theoretically
available.
History is a moving target. Nothing really stands still. A book of this sort will
be behind the times the day it comes out, and probably even before. Nothing is
ever definitive. The very definitions change. I hope that what I have to say here
makes sense to the reader. Even so, it is necessarily linked to its time and place.
Each one of us is part of a particular society, and no matter how powerful our
imagination, we cannot escape the cage of the present.
The earlier editions have heavily emphasized the nineteenth century, or per-
haps more accurately, what some have called the long nineteenth century, or
perhaps more accurately still, the period from the Revolutionary era to the
1920s. The twentieth century has been relatively neglected. Since 2002, I have
had at least something of an excuse: I can cite my own book, American Law in
the 20th Century. In this fourth edition, I have expanded somewhat the treat-
ment of the twentieth century, but it is still, I must confess, something of a poor
xvi Preface to the Fourth Edition

relation. I could have done more, much more; but it would have made a long
book even longer, and I decided not to go into as detailed a treatment as I had
given the nineteenth century. I have also tried, in this edition as in the earlier
ones, to use as little legalese and jargon as possible, and to write in a way that
might be accessible to that mythical figure, the intelligent lay reader. I sincerely
hope she exists.
As before, I want to thank the marvelous staff of the Stanford Law Library,
now under the leadership of Beth Williams and Sergio Stone, for the magnif-
icent help they have given me. I could not have done these revisions without
their assistance. I also want to thank Vanessa de Mello Brito Arns, for her help
with stubborn issues of formatting. Special thanks to Stephanie Basso and Will
Setrakian for their tremendous help in preparation of the final text; and to Leah
Friedman, who saved me from many errors large and small.

Lawrence M. Friedman
Stanford, California,
Summer 2019
 Prologue

Modern communications and technology have made the world smaller. They
have leveled many variations in world culture. Yet, people still speak different
languages, wear different clothes, follow different religions, and hold different
values dear. They are also subject to very different laws. How different is not
easy to sum up. Clearly, legal systems do not differ from each other as much
as, say, languages do. The new world, the world we live in—​urban, indus-
trial, technological—​creates a certain kind of society; and this kind of society
depends on and welcomes certain kinds of laws. Developed countries have in-
come tax laws, they have laws about computer software, air traffic control, gene
splicing—​and, very likely, old-​age pensions and some form of health care for
some or all of the people.
The exact form that these take, in any particular country, is quite variable.
Much depends on the general legal culture (which in turn depends on the pol-
itics, culture, and economics of the country). Americans are naturally used to
American laws. Law is an integral part of American culture. Americans could
adjust to very alien laws and procedures about as easily as they could adjust to a
diet of roasted ants or a costume of togas. Judge and jury, wills and deeds, the fa-
miliar drama of a criminal trial, an elected assembly or council at work making
laws, licenses to get married, to keep dogs, to hunt deer—​these are all part of
common experience. They are also peculiar to the United States—​in some
ways. No other legal culture is quite like American legal culture. Presumably,
no other culture would fit, or suit, American society quite so well. Nonetheless,
American law is part of a large family of laws: the laws of rich, developed coun-
tries. And all of these have a lot in common.
Many people think that history and tradition are very strong in American
law. There is some basis for this belief. Some parts of the law can be traced
back very far—​the jury system, the mortgage, the trust; some aspects of land
law. But other parts of the law are not particularly old at all. The living law, the
law we use every day, the law that affects us every day, including tax law, traffic
codes, and social-​welfare laws, is comparatively recent, on the whole. While one
lawyer is advising his client how to react to a ruling from Washington, issued
that very day, another may be telling his client that some plausible course of
action is blocked by a statute well known to the lawyers of Henry VIII or by
a decision of some older judges whose names, language, and habits would be
unfathomable mysteries to both attorney and client. But the first situation is
xviii Prologue

much more likely than the second. Some parts of the law are like the layers of
geological formations. The new presses down on the old, displacing, changing,
altering, but not necessarily wiping out everything that has gone before. Law,
by and large, evolves; it changes in piecemeal fashion. Revolutions in essential
structure are few and far between. That, at least, is the Anglo-​American expe-
rience. (In some countries—​China, for example; or Russia—​the changes have
been more dramatic, more revolutionary, at times). Most of the legal system is
new, or fairly new, but some bits of the old get preserved among with the mass
of the new.
What is kept of the old is also highly selective. Society may be fast or slow as
it changes, but in either case, it is ruthless. Neither evolution nor revolution is
sentimental. Old rules of law and old legal institutions stay alive only when they
still make sense; when they serve a purpose today, rather than yesterday. They
have to have, in short, survival value. The trust, the mortgage, the jury are legal
institutions that can be traced back centuries. But they do not seem archaic—​
because they are not archaic. They have come down from medieval times, but
they are still with us because they serve twenty-​first-​century needs. They have
survived because they found a place in our society—​a society that does not
hesitate to pour old wine into new bottles and new wine into old bottles, or
throw both bottles and wine away. At any rate, the theory of this book is that
law moves with its times and is eternally new. From time to time, the theory
may not fit the facts. But more light can be shed on legal history if one asks why
does this survive than if one assumes that law, unlike the rest of social life, is a
museum of accidents and the mummified past.
In an important sense, law is always up to date. The legal system always
“works”; it always functions. Every society governs itself and settles disputes.
Every society has a working system of law. If the courts, for example, are hide-
bound and ineffective, that merely means some other agency has taken over
what courts might otherwise do. The system is like a blind, insensate machine.
It does the bidding of those whose hands are on the controls. The laws of China,
the United States, Saudi Arabia, France, North and South Korea, reflect the
goals and policies of those who call the tune in those societies. Often, when
we call law “archaic,” we mean that the power system of its society is (in our
opinion) morally out of tune. But change the power system, and the law too will
change. The basic premise of this book is this: despite a strong dash of history
and idiosyncrasy, the strongest ingredient in American law, at any given time, is
the present—​current emotions, real economic interests, and concrete political
forces. It may seem a curious beginning to a book of history to downgrade the
historical element in the law. But this is not really a paradox. The history of law
has meaning only if we assume that at any given time the vital portion is new
and changing, form following function, not function following form. History of
 Prologue xix

law is not—​or should not be—​a search for fossils, but a study of social develop-
ment, unfolding through time.
Law and society both have a long and elaborate history in the United States.
Compared to some, the United States is a new country—​but Boston and
New York are more than three hundred years old, and the U.S. Constitution
may be the world’s oldest living organic law. In short, enough time has elapsed
for American law to be essentially American—​ the product of American
experience.
But American law is not an isolate. It has, and has had, close affinities to other
legal cultures. The most important immediate ancestor is easy to identify. The
basic substratum of American law, as of American speech, is English. Before
the Europeans came, the country belonged to the Native Americans. Europeans
came late, but they came in force. They settled first along the coast. The Spanish
settled Florida; the French built New Orleans. Swedes settled briefly on the
Delaware; the Dutch pushed them out. Then the English overwhelmed the
Dutch. The Hudson and Delaware settlements were added to a chain of tiny
colonies, all English-​speaking, along the Atlantic coast. Their populations grew.
More Englishmen came. And English speakers, as Englishmen or Americans,
ultimately pushed out the native peoples, often quite ruthlessly, and took over
their lands; they took over the lands of the French and the Spanish as well;
and they gobbled up a big chunk of Mexico. They established an empire that
stretched from sea to sea. And then they pushed out across the ocean to Hawaii,
Puerto Rico, and the Philippines.
Each culture group lived by its own legal norms. Of many of the systems of
law in effect in some of the native groups, it is fair to say, not a trace remains.
Others kept some of their vitality. There are Native American communities
today with their own court systems, and some bits and pieces of their tradi-
tion live on. Some scholars have claimed to find a speck or two surviving from
the Dutch legal tradition. The office of district attorney may be Dutch in or-
igin. French law gained a more or less lasting foothold in Louisiana, and there
(in translation) it stays. Spanish law sent down wider if not deeper roots; no
state can call its law Spanish, but some aspects of Spanish or Mexican law (for
example, the community-​property system), persist in California and in other
parts of the West. Everything else, if not strictly native, is English, or comes by
way of England, or is built on an English base.
But English law was complex and bewildering. It is not easy to say which
English law was the ancestor of American law. Colonial law—​the law of the col-
onies, up to Independence—​is, after all, an abstraction; there was no “colonial
law” any more than there is “American law,” common to all fifty states. There
were as many colonial systems as there were colonies. The original union was
made up of thirteen states; but this thirteen represents, if anything, only a head
xx Prologue

count at one arbitrary time. Some colonies—​Plymouth and New Haven—​were

swallowed up by larger ones. It was the merger of two entities that produced
New Jersey. Each of these entities had its own legal system.
Each colony, moreover, was founded at a different time. At least a century
separates the beginnings of Massachusetts from the beginnings of Georgia.
During this time, English law did not stand still. The colonies began their
careers at different points in the process of legal development. During all this
time, the law of the mother country was theoretically superior. But the colonial
condition was not one of simple subordination, like the relationship of a ward
to a city, or a county to a state. Even as a matter of theory, it was not clear which
acts of Parliament and which court decisions were binding on the colonies. The
colonies borrowed as much English law as they wanted to take or were forced
to take. Their appetite was determined by requirements of the moment, by ig-
norance or knowledge of what was happening abroad, and by general obsti-
nacy. Mapping out how far colonial law fit English law is almost hopeless. Legal
cultures differed in different colonies. New England deviated from standard
English law more than the southern colonies did. The connection between the
two sides of the Atlantic was always strong but never harmonious. They were
also very far apart, in the literal sense. A big ocean separated them. It was hard
for the mother country to control its unruly children. The colonies quarreled
with the mother country over law as well as over politics and taxes. Even after
the Revolution, the legal connection was not totally severed. A complex legal
relationship survived after 1776. English law continued to be imported, in some
quantity, when and as needed. A thin, thin trickle remained even at the end of
the nineteenth century.
English law, as we said, was complex and difficult. But what was English
law? Two decades before the Revolution, Sir William Blackstone reduced to
writing what he considered the core of the common law. His Commentaries on
the Law of England, in four parts, can be printed out as one thick but manage-
able book. This book, in its sluggishly elegant style, became a great bestseller,
both in England and America. On the whole, Blackstone did a good job of
putting the rank weeds of English law into some kind of order. But the picture
he presented was partial and defective, like a dictionary that omitted all slang,
all dialect, all colloquial and technical words. And even this imperfect guide
was not available in the colonies before the 1750s. They lacked a handy key to
English law. Yet a key was desperately needed. The English common law was
one of the world’s great legal systems; but it was incredibly hard to master or
understand.
English law stood apart and still stands apart from most European systems
of law. A modified, modernized form of Roman law swept over much of the
Continent, starting in the Middle Ages. English law resisted the “reception,”
 Prologue xxi

as the process is called. Modern continental law finds its highest expression
in a code. “The law” in France and Germany is above all the law of the great
codes—​statutes, in other words. “Common law,” on the other hand, was “un-
written law,” as Blackstone called it. “Unwritten” was not meant literally;
English and American laws are, if anything, overwritten. Blackstone meant,
however, that the ultimate, highest source of law was not an enactment, not a
statute of Parliament; rather, it was “general custom,” as reflected in decisions of
the common-​law judges. These judges were “the depositaries of the laws—​the
living oracles, who must decide in all cases of doubt, and who are bound by an
oath to decide according to the law of the land.” (1 Bl. Comm. *69). Common
law was judge-​made law—​molded, refined, examined, and changed in the cru-
cible of actual decision, and handed down from generation to generation in
the form of reported cases. In theory, the judges drew their decisions from ex-
isting principles of law; ultimately, these principles reflected the living values,
attitudes, and ethical ideas of the English people. In practice, the judges relied
on their own past actions, which they modified under the pressure of changing
times and changing patterns of litigation.
As a general rule, common law adhered to precedent. Precedent is commonly
considered one of the basic concepts of the common law. It was never quite
a straitjacket, as some laymen (and lawyers) have tended to think. American
judges have always assumed power to overrule an earlier case, if they considered
the case seriously misguided. This was not something courts did every day. Still,
the power was there, along with the more important power to “distinguish”
an embarrassing precedent—​that is, to interpret it into oblivion, or twist its
meaning. In any event, the common law was and is a system in which judges
are kings. Whether they follow precedent, distinguish, or overrule it, they are
literally making new law: they are or can be creating and expounding new
principles, or applying them in ways that would have surprised the judges who
came before. In its prime, the decided case was one of the basic building blocks
of law. For a long time, judges looked at statutes with a certain amount of suspi-
cion. Statutes were, in a way, unwelcome intrusions; the common law was what
mattered. In continental law, all law (in theory) is contained in the codes. In the
common law, many basic rules of law are found nowhere but in the published
opinions of the judges.
What Parliament can do in a month’s intensive work, a court can do only
over the years. And it can never do it quite so systematically, since the common
law only handles actual disputes, actual cases. It cannot deal with hypothetical
or future cases. If no one brings up a matter, it never gets into court. It is no an-
swer to say that all important questions will turn into disputes; “disputes” are
not litigation, and only actual litigation makes new law. Or, to be more exact,
only high court cases can make new law—​cases which have been appealed;
xxii Prologue

trial court cases are, for the most part, unpublished. What lawyers study in law
school is a body of high court cases.
Moreover, judges find it hard to lay down quantitative rules, or rules that
can’t be carried out without heavy public support (in the form of taxes), or rules
that would have to be enforced by a corps of civil servants. Judges are supposed
to decide on the basis of legal principles. They decide specific cases; but they
have only limited power to regulate. They are not equipped to decide what the
speed limit ought to be, or what food additives are carcinogens, or what animals
should go on the list of endangered species. An English (or American) court
could not possibly “evolve” a Social Security law. The common law is therefore
not only slow, it is also impotent to bring about certain important kinds of legal
change. Modern law, the law of the twenty-​first century, still has a common-​
law base, and some common-​law habits; but it is more and more law made by
legislatures, by Congress, by the two chambers in New York and Alaska and
Wyoming; and it is also more and more a vast ocean of regulations, from fed-
eral agencies, state agencies, and from local zoning boards, boards of education,
sewer districts, and the governments of cities and towns.
Older English law was often as devious in making changes as it was (some-
times) slow. The culture of the older common law was very shy about openly
abolishing obsolete doctrines and institutions. English law preferred to super-
sede and ignore them. Trial by battle, that hoary medieval favorite of romance
and costume movies, was not officially done away with in England until 1819.
For centuries, it slept in its sarcophagus; then a chance mistake in court, in 1818,
reminded the legal profession that trial by battle was still a legal possibility. An
embarrassed Parliament quickly buried the corpse (59 Geo. III, c. 46, 1819).
Legal evolution sometimes took the form of shortcuts called legal fictions.
The rise of the action of ejectment is a famous example. Suppose two men—​
we will call them Henry Black and Richard Brown—​are fighting over title to a
piece of land. Brown is in possession, but Black has a claim to it. Each thinks
he is the rightful owner. In the medieval common law, there was a legal way to
resolve this dispute in court, but it was tortuous and heavy-​handed. Ejectment
developed as a detour around the older method. In ejectment, the pleadings—​
papers filed in court—​would tell a rather odd story. A man named John Doe,
it seems, had leased the land from Henry Black. Another man, named William
Styles, held a lease from Richard Brown. Styles (it was said) had “ejected” John
Doe. In fact, Doe, Styles, and the two leases were pure figments of legal imagi-
nation. Black and Brown were the only real people in the case. This mummery
(which everybody, the court included, knew to be false) served the purpose of
bringing the issue of title before the court. Only now it was a case about a lease
(well, an imaginary lease). Since the ancient land actions did not apply to leases,
they could be avoided, and a more streamlined procedure used. In the course
 Prologue xxiii

of time, ejectment itself came to be considered a complicated nuisance. But re-

form of this action did not take place in England until past the middle of the
nineteenth century.
The strange history of ejectment is not an isolated example of high techni-
cality and fiction. What is the nonlegal mind to make of a social institution
that treats corporations as “persons,” which at times classified slaves as real es-
tate, and that allowed a plaintiff to solemnly affirm, in his pleadings, that the
city of Paris was located in England, or that London (admittedly it rains a lot)
was located on the high seas? And that moreover, in each of these cases, the
defendant was not allowed to contradict these absurdities? One of these, the
corporate fiction, is still alive (and useful); the others served their purpose and
then died out.
Enough high technicality survives to make Anglo-​American law a diffi-
cult system for both lawyers and lay people. But the common law was invo-
lute, overformalized, and fiction-​ridden not because it was changeless, but
precisely because it was constantly changing. Part of the problem lay in tra-
ditional common-​law theories, which tightly swaddled English law. In theory,
the common law was not man-​made in the ordinary sense; the judges uncov-
ered the law (or “found” it); they did not make it, or tamper with it when they
“found” it. The modern idea of law as essentially man-​made, as essentially a
tool or an instrument, was foreign to the classic common law. Change therefore
had to be hidden, disguised. Blunt, overt reforms (by judges) were out of the
question. Moreover, working doctrines of law, however quaint they may seem,
must be acting as the servants of some economic or social interest. In a so-
ciety with many rough, contentious holders of power, at war with each other,
the court affects power relations only slowly and subtly. Otherwise courts might
upset a delicate balance.
Moreover, foolish traditions are tolerable as long as they are harmless. The
abolition of trial by battle illustrates this point. If trial by battle had not been all
but dead, it would have been gone long before the nineteenth century. Powerful
engines of change can and do exist inside the legal system. In modern times
these engines of change lie outside the court system, for the most part. Some
changes take place simply by opening and closing institutional valves. Courts
gain work, and lose work. Parliament gets stronger; the king gets weaker.
Modern law has a whole alphabet soup of administrative agencies; they exert
enormous power. Many people think the law is archaic, hide-​bound; a collec-
tion of fossils. But this is essentially false.
Most people know very little about the law. It is vast, technical, com-
plex. But it is the business of lawyers to know what the lay person does
not. Lawyers can tolerate and master artifice. After all, technical difficulty
is one excuse for having lawyers at all. He (and now she) has a monopoly
xxiv Prologue

on courtroom work, a stranglehold on the drafting of documents, an essen-

tial role on counseling clients. The English bar was, by the time our story
opens, an important influence on English law; or at least on its forms and
procedures. By 1600, English lawyers were plainly a profession—​a group
of men trained and educated in law. They were not, however, trained at
universities, at Oxford or Cambridge. Lawyers came out of the Inns of Court,
in London. The Inns had no connection with the universities. They had no
connection with the general legal culture of Europe. Young men at the Inns,
if they learned anything, learned English law, English pleading, English legal
experience. Legal training was primarily practical, not theoretical. This pe-
culiar bent in English legal education may have helped the common law in
its resistance to the “reception,” that is, the continental revival of a system
tinged with Roman law. In England, too, the bench was recruited from the
bar. Lawyers and judges made up a single legal community, with a shared
background and common experiences, as they do to this day. They formed a
cohesive group, a kind of clan, or guild.
For these reasons and others, then, the common law came down through the
centuries with some of its past sticking to it, like a skin it never quite succeeded
in molting. This skin was strongly colored by the feudal past. But it was only a
skin. Medieval English practice left deep marks on the language of the law, and
perhaps on some of the habits of common-​law lawyers. But as the economy,
society, and culture changed, the common law changed along with it: its sub-
stance, its guts, its bones and body, its very essence.
The classic common law was utterly obsessed by two central topics: formal
legal process and the law relating to land. A second’s thought tells us, of course,
that these two topics were never all of the living law of England, any more than
the life of great lords could have been the only way of life in England. What
we understand as common law was essentially the law that was applied in the
royal central courts. This was the law, essentially, that English jurists, up to and
including Blackstone, wrote about. But these courts, by and large, dealt with
the legal problems of a tiny group of people. Leaf through the pages of Lord
Coke’s reports, compiled in the late sixteenth and early seventeenth centuries,
and you find a colorful set of litigants, all drawn from the very top of British
society—​lords and ladies, landed gentry, high-​ranking clergymen, and wealthy
merchants. Common law was an aristocratic law, it was a law for and of the
gentry and nobility. The masses were hardly touched by this system and were
under its rule only indirectly—​except, that is, for the bite of a rather savage
system of criminal justice. There was law in the countryside, on the manors of
the great lords—​law that controlled the common people and bound them to
their betters. This was local law, customary law, and it made very little impact
on the treatises, on books like Coke’s or Blackstone’s. Law books were written
 Prologue xxv

at the seat of power: they dealt with the king’s kind of law. Most of these books
barely noticed the daily law of the lower orders.
Many local customs, too, like local dialects, lived on alongside the common law.
Legal authority was never wholly compact and centralized. There was no single
focus, no single legal culture. English law was pluralistic; it took many forms, and
it varied from place to place. It was a little bit like the law of the later colonial em-
pire, where (in an African colony, say) official law, imported from the metropole,
dominated in the capital, among expats and businessmen, while the countryside
was left largely to fend for itself, under customary law. In England, for example,
the common-​law rule of inheritance was primogeniture: land descended to the
eldest son. But this was not the rule in the county of Kent. Here one found, instead,
a system called gavelkind tenure (abolished in 1925); all the sons inherited land,
in equal shares. Local and customary law were important influences on the law
of early America. Colonial practice owed a lot to the law which the settlers knew
best: the local laws and local customs they were familiar with back home.
Even for important affairs of important people, the common law did not reign
supreme. It had to contend with rival courts, institutions, and subsystems of law.
In the end, the royal common law usually won out. But it did so only by granting
deep concessions. Language here again is a useful analogy. The Anglo-​Saxon lan-
guage held out against onslaughts of Norse and French, and against the prestige of
two culture tongues, Latin and Greek. But what emerged was a language (English)
drenched with foreign words, and heavily overlaid with foreign syntax. This is even
more true of the language of the law. Such common words as judge, jury, court, ap-
peal, and verdict all come from French or Latin. Roman and civil law ideas seeped
into the common law. And some key legal institutions-​-e​ quity, admiralty, and the
law merchant—​were hardly common law at all; they were basically branches of the
great civil-​law tree, transplanted in England.
Of the competitors of the common law (or supplements to it), the most as-
tounding was the peculiar system, known as equity. In early medieval times,
one of the important royal officials was the chancellor. The chancellor’s office—​
the chancery—​was responsible for issuing writs to the common-​law courts.
Through a long and complex process, chancery itself became a court. But it was
a court with a difference. Chancery did not follow strict common-​law rules.
Looser principles governed, principles in accord with prevailing ideas of “eq-
uity.” The chancellor was said to be “keeper of the king’s conscience.” As such,
he had the power to dispense with unjust rules. The chancellor was a clergyman,
originally, and he could read and write (no small achievement). He had a staff
of scribes, too, who were in charge of the “machinery” of writs, the documents
that petitioners needed to set legal processes in motion.1 This power gave him

1 Theodore E. T. Plucknett, A Concise History of the Common Law (5th ed., 1956), p. 180
xxvi Prologue

a strategic position in the royal system of justice. Over the course of time, the
chancellor, as the king’s delegate, loosened the rules of the common law in a
number of fields of law. Equity was at first more or less ad hoc, but gradually, the
rules became more systematic. One could speak of principles and doctrines of
equity as well as of “law.” Equity became, in short, almost a system of antilaw.
In England, in other words, two contradictory systems coexisted—​and not
always peacefully. Yet, in many ways law and equity complemented each other.
The common law could proclaim duties and rights; it could award money
damages. But it could not force anybody to act (other than to pay money).
Equity, on the other hand, had a whole battery of supple remedies. The injunc-
tion was one of these. An injunction is an order commanding a person to do
something (or sometimes to stop doing something). It is enforceable because,
if a defendant disobeys, the chancellor can declare him in contempt of court,
and put him in jail without further ado. Equity had power over persons, not
over things. It could not render judgments that actually affected the title to
the land, for example. It could only act on the parties. The chancellor could
order B to give A’s land back to him. If B refused, the chancellor could send him
to jail until he obeyed. But the chancellor could not give A the land directly.
Procedurally, the two systems were very different. Equity was closer to conti-
nental law and to canon law. No jury ever sat in a chancery court. The jury was
purely a common-​law institution. On the other hand, many familiar doctrines,
and some whole branches of law, such as the law of trusts, grew up out of equity
rules and equity practices.
What was curious, perhaps unique, was the separation, within one legal
system, and one country, of these two systems, law and equity. A person could
have a claim that was good in equity and bad in law, or vice versa. For example,
common-​law judges treated a deed of land as valid, so long as it was executed
in proper form. In equity, however, if the deed was the product of fraud or de-
ceit, equity would not enforce it, no matter how good it was in form. Hence, a
claim based on a deed might win or lose, depending on which courtroom door
the plaintiff entered. Courts of common law paid no attention to the norms of
equity. For their part, an equity court would dismiss a case if the plaintiff had an
“adequate remedy at law.”
Relations between the two systems were different, of course, at different
times. In Tudor-​Stuart days, open and bitter conflict broke out between equity
and law. The common-​law lawyers did not succeed in driving their rival out of
business, much as they would have liked to. After a time, the two systems came
to a rough and ready coexistence. In the nineteenth century, equity and law fi-
nally “merged” in most of the states. This meant, basically, that there would no
longer be separate courts of equity and law; judges would handle both systems
in a single court, and with a single procedure. Where rules of law and equity
 Prologue xxvii

collided, equity usually won. Some states—​Massachusetts, for one—​had never

had a system of equity. Most of the states merged the two systems in the nine-
teenth century—​New York, for example. New Jersey did not abolish its chan-
cery courts until 1947. And in little Delaware, the separate chancery court has
lasted into the twenty-​first century. Even though equity, almost everywhere, is
gone as a separate entity, its historical memory lingers on, and makes a differ-
ence. The right to trial by jury often depends on whether the case would have
been, in the past, an equity case or not.
Chancery was not the only court that did not follow strict norms of common
law. The court of Star Chamber was an efficient, somewhat arbitrary arm of
royal power. It was at the height of its career in the days of the Tudor and Stuart
kings. Star Chamber stood for swiftness and power; it was not a competitor
of the common law so much as a limitation on it—​a reminder that kings and
queens could not safely entrust high state policy to feisty, independent courts.
The special commercial courts—​also outside the common law—​lasted longer
than Star Chamber. The royal central courts, absorbed in the tangle of land
titles, paid little attention to the Lombard merchants and to the bankers and
tradesmen, foreign and native, who bought and sold and trafficked and used the
customs and habits of international business. The mercantile courts, however,
were sensitive to these customs and habits, and knowledgeable about them. In
these courts, a separate body of law—​the law merchant—​governed, rather than
the ordinary law of England. There were various types of commercial courts,
including the colorful courts of piepowder, a court of the fairs where merchants
gathered. Sir Edward Coke spoke of it as a court of “speedy justice . . . for ad-
vancement of trade, and traffic,” as fast “as the dust can fall from the foot.”2
Through fair courts and merchant courts, English law and practice
recognized the merchant’s ways of doing business. From these sources, English
law learned to handle the documents from which modern checks, notes, bills
of exchange, and bills of lading are descended. Eventually, the ordinary courts
absorbed the law merchant into the bloodstream of the common law, and the
merchant courts decayed. By the seventeenth century, this process was well ad-
vanced. A late key figure in this development was Lord Mansfield, who died
in 1793. Mansfield, deeply versed in Roman and continental law, had a sure
touch for commercial cases. His decisions were sensitive and responsive to the
merchant’s needs and ways.
Admiralty, the law of the high seas and maritime commerce, was another
“rival” of the common law. Admiralty, too, had an ancient international

2 4 Co. Inst. 272. The name piepowder is said to be a corruption of two French words meaning
“dusty foot.”
xxviii Prologue

tradition, quite separate from the common law. As early as the sixteenth cen-
tury, the English court of admiralty came into conflict with the common-​law
courts. The struggle for control over sea law was not finally resolved for many
years. It was not the romance of the sea that was at stake, but power over naval
policy and international transport and commerce.
Family law—​ marriage and divorce—​ was also largely outside the pale
of common law. Marriage was a sacrament; church courts, even after the
Reformation, maintained jurisdiction. The law of succession to property
(in modern law, wills and estates) was curiously divided: the common law
controlled inheritance of land, and church courts controlled inheritance of per-
sonal property. The two courts used quite different rules. If a man died intestate
(without a will), his eldest son inherited his land. Personal property (money
and goods) went in equal shares to the children. And ecclesiastical courts, like
the courts of equity, did not use common-​law procedures; there was no jury, for
example.
This prologue has laid heavy stress on courts. But much of English law was
not judge-​made. More and more of it, over the years and the centuries, came
from king and Parliament (and then from Parliament primarily). In Renaissance
England, there was nothing like the steady stream of statutes that is the usual
situation today. But statutes did exist. Some of them made basic changes in the
structure of the law, or in its substance. Some of these were carried over into the
colonies.
English law was never static. The law of Charles II was not the law of Edward
I; and it was light years away from the law of King Alfred. England in 1600,
roughly the time before the age of colonial settlement, stood on the brink of
what we call modernity; a time of fundamental change, a seismic shift in law
and society. In traditional cultures, people thought of law as fundamentally
time-​honored and unchanging: a divine or immemorial body of rules. Rules
defined fixed positions, for nobles, kings, commoners and others: where they
belonged, on what rung of a cosmic ladder they stood. In modern times, law
is a tool, an instrument; the people in power use it to push or pull toward
some definite goal. The idea of law as a rational tool or instrument underlies
all modern systems, whether capitalist, socialist, fascist, whether democratic or
authoritarian. And all modern societies govern by and through law—​through
rules, regulations, statutes, decisions. And these norms are constantly growing,
shrinking, changing. The period covered by this book is part of this period of
restless and insatiable change.
 PART I
THE BE GIN N INGS: A M E R ICA N
L AW IN T HE C OLONIA L PE R IOD

The colonial period is, for most lawyers and laymen, the dark ages of American
law. When an American lawyer faces a legal problem, she normally considers
two sources of legal authority—​ statutes and published cases. The typical
American lawyer has probably never seen, dealt with, or even heard of any cases
or statutes from the colonial period. There is a good reason why. Until well after
independence, there were no handy and accessible collections of colonial cases
and statutes. Even now, only scattered collections of colonial cases have ever
been published. Many colonial statutes survive only in ancient or rare editions.
The Laws and Liberties of Massachusetts (1648), one of the most important colo-
nial codes, had utterly vanished, until a copy turned up in the twentieth century.
At least this book had been actually printed. The laws of seventeenth-​century
Rhode Island, its codes and statutes, existed “in handwritten manuscript rather
than printed form.”1
That so much of the native tradition disappeared is not really surprising.
Law constantly changes; and old law is basically useless law, except to scholars.
Only collectors and historians care much about the laws of Massachusetts in,
say, 1830. The laws of 1648 are even deader; they were already quaint and out-
dated during the lifetime of John Adams. Conditions between the time of set-
tlement and the war of independence were worlds apart. The legal needs of a
small settlement, dominated perhaps by clergymen, clinging precariously to the
coast of an unknown continent, were fundamentally different from the needs
of a bustling commercial state. Gross trends in the growth of the law have al-
ways followed gross trends in the larger society. In the eighteenth century,
for example, colonial law seemed to swing back toward English models. Even
after the Revolution, American law appeared to become, in some ways, a bit
more English. This was not really a paradox. “English” is a misleading term.

1 G. Edward White, Law in American History, vol. I (2012), p. 37.

2 Part I: The Beginnings: American Law in the Colonial Period

Economic growth and the social division of labor called for tools of law the
Puritan oligarchs of 1650 had no need of and no use for. When new legal tools
were needed, they could most easily be imported from abroad, from the mother
country. English law was a source and a supply that American lawyers could
use without translation. England and English law were, of course, growing,
changing, and developing in their own right. Colonial law came to look more
like English law by the time of the Revolution, but there was still a great deal
about it that was new, fresh, and baldly indigenous.
Still, the legal experience of the colonial period sank into neglect, more
or less, after independence. It left behind no strong, published record. It was
also fragmented, localized; it lacked dignity and general authority. It could be
easily labeled as a kind of jargon, or dialect. Other colonial systems of law, from
Australia to Zanzibar, suffered the same fate of indignity and obscurity. For
American jurists, England was the standard. English books, judges, ideas, were
available; colonial books and reports were not.
Still, it would be wrong to write off the colonial period as irrelevant. After
all, the Revolution was a political but not a legal revolution. The common law
was American law both before and after. Courts heard ordinary cases before,
during, and after the war, with no lack of continuity. And much of what was
novel about American law in the colonial period—​and this was, as we shall see,
quite a lot—​survived. Slavery, for example. American rules of land tenure. And
many other small and large rules, institutions, habits.
As we said, not much appeared in print during the colonial period, but there
are scads of archives, records, and papers. Enough of these, so that historians
can excavate, describe, and explain a lot about the colonial past. America was
born under a lucky star. European wars have destroyed and obliterated whole
cities; their records often died in the flames. American archives, especially in
the North, have escaped the worst catastrophes. Neglect, carelessness, chance
destruction, and the work of hungry worms have taken a toll. But a surprising
amount remains. More and more of it has been edited, or even put online.
It is not easy to say something general about the colonial period. One hun-
dred and sixty-​nine years went by between Jamestown and the Declaration of
Independence. The same length of time separates 1776 and the end of World
War II. No one would consider this last span of time a single “period.” The com-
parison is a bit misleading; the speed of social (and hence legal) change is itself
quite changeable. Even so, there were many separate colonies; they all, every
one of them, changed radically in the one hundred fifty years of the colonial
period. George L. Haskins, in a fine study of Massachusetts Bay, listed a number
of wrong ideas about colonial law and legal history. One wrong idea was “that
the law of the colonies was essentially the common law of England, brought
over to the extent applicable to colonial conditions.” This theory denied “any
 The Beginnings: American Law in the Colonial Period 3

native legal achievements in the colonial period”; this was clearly not the case.
Another assumption was that “colonial law was basically the same everywhere,”
because “the law of the colonies was essentially that of England.” This was also
wrong (and, for that matter, English law itself was not “the same everywhere”).
Indeed, colonial law (especially in the early years) looked very different from
English law—​at least the common law of the royal courts in London.
But how different? And why? Professor Haskins proposed his own general-
ization: “The conditions of settlement and of development within each colony
meant that each evolved its own individual legal system, just as each evolved
its individual social and political system. Geographical isolation, the date and
character of the several settlements, the degree of absence of outside supervi-
sion or control—​all had their effect in ultimately developing thirteen separate
legal systems.”2 At any particular time, then, each colony had a legal system built
up out of bits and pieces, like a quilt constructed out of patchwork. There were
three general sources of law. First, there was what might be called remembered
folk-​law—​aspects of living English law, which settlers brought with them; the
jury is a clear example. Second, there were those norms and practices that de-
veloped on this side of the Atlantic—new norms and practices, to cope with
new problems of life, with situations that had no English counterpart. English
law, for example, had no rules to cover relationships with native tribes, or in
gen­eral with the problems of a brave new world. Third, there was an ideological
element: norms and practices adopted because of who the colonists were and
what they believed in. Puritans in power made law dictated by their own tight
set of beliefs, law for the communities they were building.
These three elements combined, in various ways, to create a new legal system
in each of the colonies. No wonder, then, that the law would look strange, to
English jurists looking across the ocean. Moreover, the colonists did not carry
with them standard English law—​the law of the royal central courts, which
was, after all, law for the nobility and the landed gentry. The colonists brought
with them local law, local customs.3 And, of course, the colonists did not all
come from one particular spot in England. They represented different local
traditions. The result was often to “re-​create” the “diversity of local England in
the New England countryside.”4
In the eighteenth century, the “English” element became, perhaps, stronger
and more standardized. After the Revolution, the current of imported English law

2 George L. Haskins, Law and Authority in Early Massachusetts (1966), p. 6.

3 On these points, see the classic article by Julius Goebel Jr., “King’s Law and Local Custom in
Seventeenth-​Century New England.” Colum L. Rev. 31:416 (1931).
4 David Grayson Allen, In English Ways: The Movement of Societies and the Transferal of English
Local Law and Custom in Massachusetts Bay in the Seventeenth Century (1981), p. 20.
4 Part I: The Beginnings: American Law in the Colonial Period

slowed down to a trickle. Diversity within England lost its importance, as far as the
United States was concerned. Diversity within the colonies and states was, how-
ever, always significant. Both colonial law and the law of the United States were
subject to centrifugal and centripetal forces: forces that pulled jurisdictions apart;
forces that pushed them together. The mother country, its agents, its superior legal
culture—​these acted centripetally, before independence. Geographical isolation,
local politics, and the sovereignty (in law or fact) of colonies and states were cen-
trifugal forces. One of the great, and constant, themes of American law is this con-
stant pushing and pulling: uniformity and diversity, in constant tension over time.
Eventually, at Independence, there were thirteen states. But there were more
than thirteen colonies. Throughout the colonial period, big colonies swallowed up
littler ones. What became New Jersey was once East Jersey and West Jersey, two
separate colonies. Also, if you stopped the clock at any particular moment during
the colonial period, you would find colonies in very different stages of economic
and social growth. Each colony suffered through a first, precarious period, be-
fore the social order solidified. In a way, it is more enlightening to compare early
Georgia to early Massachusetts, than to compare a bustling, mature Massachusetts,
in the 1700s, to the infant colony of Georgia. Within each colony, too, old and new
were mixed together—​established population centers and tiny frontier settlements.
Early Massachusetts, middle Virginia, late New York: each showed a specific adap-
tation of English law to local problems, experience, and habits. Each colony had
its commercial center and its hinterland (the South, however, was basically rural).
A somewhat similar point can be made about America in the nineteenth century.
In 1800, or 1850, or 1875, there were big cities, small towns—​and, at the periphery,
villages and almost empty spaces: ports, railroad centers, but also isolated farms;
capitals and outposts, seacoasts, river bottoms, and hinterlands. And each kind of
community had its own special brand of living law. The living law of the colonies
was a continuum, across the spaces that made up the colonial territory.
It was also a continuum across time. How sharp was the break, for example,
in 1776, the year of the Declaration of Independence, as far as the living law
was concerned? Of course, a revolution is a revolution, and not a tea party.
But unlike the Russian Revolution, or the French Revolution, the American
Revolution did not result in some sort of total social upheaval. Indeed, in some
ways, it was a war fought for continuity; for the right to trudge along familiar
walkways. Those familiar walkways themselves had been transformed in the
course of colonial history. Colonial life itself had prepared the way for a break
with the mother country.5 By the time of the Revolution, there had been a cen-
tury and a half of settlement. This was time enough for a real elite to develop;

5 On this thesis, see the seminal work of Gordon S. Wood, The Radicalism of the American
Revolution (1991).
 The Beginnings: American Law in the Colonial Period 5

in most colonies, there were people on top, and people under them; sometimes
a real elite, sometimes even ruling families, oligarchs, small groups with big
powers. This was, perhaps, truer in (say) Virginia than in New Hampshire. But
everywhere, in comparison with England, society was more open, more fluid;
there were more rags to riches stories; by the time of the Revolution, the ruling
families, in the crisis with England, were mostly in favor of the break, and they
were also forced to accept the “further politicization of the masses.”6
In Virginia, in the words of Warren Billings, self-​government did not “come
all at once,” and it was “something neither the founders nor the Crown in-
tended. . . . In a sense, self-​government just happened.”7 But it happened, of
course, against a particular social background. This background was pro-
foundly different from the cultural, economic, and political situation in the
mother country. What developed on this side of the Atlantic was a culture and a
politics of self-​government (at least by white males). And the men who ran the
colonies got used to running the colonies, and they resented the attempt, by the
English, to treat them as colonies.
But they were, in fact, colonies. And this was a period of the colonial ex-
pansion of Europe. The English (and others) settled North America. Spain,
France, the Netherlands: they too were expanding. The colonies themselves
were colonizers. They spread west and south; they expanded in all directions.8
They were in conflict with nature itself. But also with other human beings. The
land was, after all, not empty; it was peopled with native tribes. The settlers
had complex relations with the natives. Sometimes, especially in the early years,
they dealt with them as equals. But as time went on, the natives were dealt with
more harshly, degraded and discriminated against,9 treated as an alien, hostile
group very often, and there were bitter and bloody wars and battles. In the long
run, as settlers poured in, their numbers overwhelmed the natives. The natives
also lost the war with disease: sicknesses which arrived with the colonists ended
up killing huge numbers of natives, who lacked any sort of immunity.
In this part, we can touch on only a few main themes of colonial law. Colonial
legal experience was always rich and diverse. The conditions of life varied
greatly between the different colonies. Some of these variations had a lot to do

6 Milton M. Klein, “Leadership in Colonial and Revolutionary America,” in Hendrik Hartog and
William E. Nelson, eds., Law as Culture and Culture as Law: Essays in Honor of John Phillip Reid
(2000), pp. 58, 75.
7 Warren M. Billings, “‘That All Men Are Born Equally Free and Independent:’ Virginians and
the Origins of the Bill of Rights,” in Patrick T. Conley and John P. Kaminski, The Bill of Rights and the
States: The Colonial and Revolutionary Origins of American Liberties (1992), pp. 335, 362.
8 On this thesis, see in particular, Christopher Tomlins, “The Many Legalities of Colonialization: A
Manifesto of Destiny for Early American Legal History,” in Christopher L. Tomlins and Bruce H.
Mann, eds., The Many Legalities of Early America (2001), p. 1.
9 See Yasuhide Kawashima, Puritan Justice and the Indian: White Man’s Law in Massachusetts,
1630–​1763 (1986).
6 Part I: The Beginnings: American Law in the Colonial Period

with climate or the lay of the land. Some were structural. Some colonies were
proprietary colonies—​grants which the king gave to individuals or companies,
entitling them to settle some tract of land. Some colonies began with direct
royal charters. Parliament also handed out charters. Colonies were also distin-
guished in terms of religion or ideology: Puritan New England, William Penn’s
“Holy Experiment” in Pennsylvania (Penn was a Quaker). A rich soil and a mild
climate, in the South, favored certain crops—​tobacco, cotton, rice. Climate and
soil made possible a plantation economy. Slavery, for example, came to make
sense in the South; in New England, with its patchwork of small family farms,
slavery failed to make much headway.
So the colonies were hardly monolithic. There were a few underlying
commonalities: social and economic life was open, compared to England; there
was abundant land; English control was far away, and weak, at first; then med-
dlesome and intrusive for everybody in the eighteenth century. English tradi-
tion was the basic stuff of American law. But it was never entirely clear what
part of English law, what aspects of the common law, what decrees coming
down from Parliament, applied on this side of the Atlantic.10 Much of the raw
material was English. But it evolved into something uniquely American, dif-
ferent in the various colonies but generally moving in parallel directions.

The Skeleton of Colonial Law: The Courts

Generally speaking, court organization in the colonies conformed to a basic

pattern. Colonies began with simple, all-​purpose structures; with time, these
became more complex, with more division of labor. England boasted (if that is
the word) an amazing, cumbersome jumble of courts, some highly specialized,
some wildly overlapping. Sir Edward Coke spent a whole volume, the fourth
part of his Institutes, talking about these courts. He listed about one hundred of
them, ranging from the crucial royal courts, with general jurisdiction, to such
special local bodies as the courts of the stanneries, which concerned itself with
tin mines and tin workers, in Cornwall and Devon. That one hundred settlers
huddled on an island near what is now the city of Newport, or freezing in the
Plymouth winter, should have reproduced this system exactly, would have
been both miraculous and insane. And indeed no such thing happened. Life
in the colonies was precarious at first. Necessity was the supreme lawmaker;
the niceties came later. The “laws” laid down in some early settlements, such

10 See the discussion in Mary Sarah Bilder, “English Settlement and Local Governance,” in
Michael Grossberg and Christopher Tomlins, eds., The Cambridge History of Law in America, Vol.
I: Early America 1580–​1815 (2008), p. 63.
 The Beginnings: American Law in the Colonial Period 7

as Virginia, were somewhat like military orders, and indeed, were modeled on
martial law.11 In the beginning, in tiny, starving, beleaguered settlements, there
was no place for sophisticated notions of separation of powers. The same people
made rules, enforced them, handled disputes, and ran the colony. A regular
court system grew up, and divided into parts, only when there were enough
people, problems, and territory to make this a sensible tactic.
Governance in Massachusetts Bay went through many convolutions be-
tween 1630 and 1639, when a lasting court system was established. The charter
of Massachusetts Bay (1629) was typical of charters modeled after the charters
of trading companies. It granted a tract of land, which of course had to be
governed. But in other ways, it was a bit like the charter of a business corpo-
ration. 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 the freemen constituted the general court, more
or less equivalent to the meeting of stockholders of a corporation. The court of
assistants (governor, deputy governor, and a number of assistants) made up a
smaller in-​group, something like a board of directors. David Konig argues that
a better analogy is with another kind of chartered corporation: the English bor-
ough. Massachusetts Bay, in other words, was basically modeled after the gov-
ernment of an English town.12
In any event, the people in charge of the company had rule-​ making
power: they could establish “Lawes and Ordinances for the Good and Welfare
of the saide Companye, and for the Government and orderings of the saide
Landes and Plantation, and the People inhabiting and to inhabite the same.”
These laws and ordinances, however, were not to be “contrarie or repugnant
to the Lawes and Statutes of this our Realme of England.” No one knows ex-
actly what “contrarie or repugnant” was intended to mean. But it was a sig-
nificant phrase; it appeared in other charters, too, including proprietary ones.
The Maryland charter of 1632, granted by the king to “his well beloved and
right trusty Subject Caecilius Calvert, Baron of Baltimore,” used similar lan-
guage; Calvert’s laws had to be “consonant to Reason, and . . . not repugnant or
contrary, but (so far as conveniently may be) agreeable to the Laws, Statutes,
Customs, and Rights of this Our Kingdom of England.”
One thing is clear: a scheme of imperial rule simply did not yet exist. The
king and his ministers had no concept of what life would be like in the new
plantations; they hardly even knew what shape the new ventures would take.
The Virginia colony was managed, initially at least, from a London home

11 Hoffer, Law and People, p. 15.

12 David T. Konig, Law and Society in Puritan Massachusetts: Essex County, Massachusetts,
1629–​1692, p. 23.
8 Part I: The Beginnings: American Law in the Colonial Period

office; the charter of Massachusetts Bay envisioned management at the seat of

the colony, probably from the very start; other colonies had still other formal
structures.
Under the charter of Massachusetts Bay, neither the general court nor the
court of assistants was primarily a court in the modern (and narrow) sense.
They handled all the affairs of the infant enterprise. Thus, a “Court holden at
Boston June 14th, 1631,” in Massachusetts Bay, ordered “that noe man within
the limits of this Jurisdiction shall hire any person for a servant for lesse time
than a yeare, unles hee be a setled housekeeper.” The court also noted that “Mr.
John Maisters hath undertaken to make a passage from Charles Ryver to the
newe Towne 12 foote broad and 7 foote deepe for which the Court promiseth
him satisfaction according as the charges thereof shall amount unto.” William
Almy was fined “for takeing away Mr. Glovers cannoe without leve”; Mr.
Pelham was ordered to pay over to another settler a sum of money “which the
Court hath awarded him to pay to make good a covenant betwixte them.” At a
court held “att Boston,” on July 26, Lucy Smith was “bound as an apprentice”
to Roger Ludlow for seven years; it was ordered “that there shal be a watch of
sixe and an officer kept every night att Boston,” and Francis Perry was ordered
“whipped for his ill speeches and misbehavior towards his maister.”13
These “courts” then simply governed. They were like general stores, not
boutiques. As the colony grew, this simplicity no longer worked. The general
court was a body of all “freemen,” and though the ruling magistrates de-
fined “freemen” to mean only men of the right religious sort, the member-
ship increased quite rapidly. The general court thus demanded the right to
govern, as the charter had promised. The general court turned into a repre-
sentative body: not everybody with a share in the enterprise, but a select and
elected group.
In 1639, Massachusetts Bay had a full system of courts, organized in a way
that would not strike a modern lawyer as unduly exotic. The general court,
acting both as legislature and as the highest court, stood at the apex of the
system. As a court, it confined itself mostly to appeals, though its exact juris-
diction was a bit vague.14 The court of assistants, made up of governor, deputy
governor, and magistrates, heard appeals from lower courts, and took original
jurisdiction in certain cases—​for example, cases of divorce. Below it were the
county courts.15 They had the same power in civil and criminal causes as the

13 Records of the Court of Assistants of the Colony of the Massachusetts Bay, 1630–​1692, vol. II
(1904), pp. 15–​16, 17–​18.
14 Joseph H. Smith, Colonial Justice in Western Massachusetts, 1639–​1702; The Pynchon Court
Record (1961), p. 66.
15 These were originally called particular courts or inferior quarterly courts. The first counties
were established in 1642.
 The Beginnings: American Law in the Colonial Period 9

courts of assistants, but “tryalls for life, lims or banishment” were “wholly re-
served unto the courts of Assistants.”16
The county courts were a vital part of the system of social control. They were
never merely courts, in the way we think of courts. Rather, they too acted as
gen­eral instruments of government. From time to time, laws assigned impor-
tant administrative functions to these courts. They dealt with “probate and
administration, apportionment of charges for the repair of bridges, provision
for the maintenance of the ministry, punishment of interference with church
elections, punishment of heretics, ordering highways laid out, licensing of
ordinaries, violations of town orders regulating wages, settlement of the poor,
settlement of houses of correction, licensing of new meeting houses, and pun-
ishment of vendors charging excessive prices.”17 The county court, in brief, was
“the critical institution for dealing with important matters of local community
concern,”18 and this was true, whether or not an observer today would consider
these matters “judicial.”
The county courts in Massachusetts also had a kind of appellate function.
They were not the absolute base of the system. There were other courts (some
ad hoc) underneath them, handling small cases or special matters. Single
magistrates had judicial and administrative power, something on the order of
English justices of the peace. By an order of 1638, magistrates could hear and
decide cases where the amount at issue was less than twenty shillings. Later laws
gave them more powers: they could deal, for example, with people who broke
laws against drunkenness. Single magistrates also had power to give oaths to
inspectors of pipe-​staves, to perform marriages, to impress laborers for repair
of bridges and highways, to deal with vagabonds and drunken Indians, and to
whip wandering Quakers.19 In 1677, the general court formalized the status of
the magistrates; each one was to have a commission from the court, under the
seal of the colony. In 1692, after an interlude of royal rule,20 the role of the mag-
istrate devolved on a new official, who was in fact called “justice of the peace.”
Local government had become thoroughly secularized, and, from then on, took
on a rather more English look.21

16 The Laws and Liberties of Massachusetts, 1648 (1929 ed.), p. 15.

17 Smith, op. cit., p. 69.
18 Konig, op. cit., p. 36.
19 Smith, op. cit., pp. 72–​74.
20 In 1686, the British established a “Dominion of New England,” which included Massachusetts
Bay; the original charter of the colony was revoked. In 1691, after the so-​called “Glorious Revolution”
in England, the Dominion’s existence was ended, and Massachusetts resumed its separate existence,
with a new charter. William E. Nelson, The Common Law in Colonial America: The Chesapeake and
New England, 1660–​1750 (2016), p. 83.
21 John M. Murrin, Anglicizing an American Colony: The Transformation of Provincial
Massachusetts (PhD thesis, Yale University, 1965), pp. 156–​58.
10 Part I: The Beginnings: American Law in the Colonial Period

One habit—​creating special courts outside the regular pyramid of courts,

courts which would handle particular sorts of business—​had appeared early in
Massachusetts. A law in 1639 established strangers’ courts, for the “more speedy
dispatch of all causes which shall govern Strangers, who cannot stay to attend
the original Court of justice.” These courts had the same jurisdiction as the
county courts, but their sessions were not confined to regular terms of court.22
Rather than tinker with the ordinary county courts, the colony chose to set up
a separate agency. This kind of choice had been frequently made in England.
The Massachusetts pattern has been described in detail, because it illustrates
some basic characteristics of colonial courts. Separation of powers was notably
absent. Jobs were handed over to this or that institution, and nobody cared
about or even understood distinctions between legislative, judicial, and exec-
utive powers: separation of powers was an idea whose time had not yet come.
All but the lowest and highest levels of courts had mixed jurisdiction; they tried
cases and also reheard cases from lower courts. New Hampshire, Connecticut,
and Rhode Island had, roughly, the same plan of organization.
In Virginia, we find different names, but a more or less parallel development.
Dale’s code—​the “Lawes Divine, Morall and Martiall” of 1611—​were laws at the
early, military stage. They set up a stern, undifferentiated system of authority;
a single ruling group held tight control of the colony; there was little division
of labor in government. 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. The code was neither lawyer’s law nor English law in the usual sense.
But neither was it entirely foreign. David Konig has pointed out the relation-
ship between the regime this code established and English rule in other restless,
outlying areas—​Ireland, for example—​and its relationship to Tudor modes of
maintaining order among unruly populations.23 To be sure, the code also re-
flected the crudities of life in Virginia: the Indians, the “starving time,” real or
imagined problems of discipline. On paper, the code seemed quite severe; it
threatened death for trivial crimes. The penalties for stealing public goods, or
boats, were very harsh, but the harshness reflects how important these items
were to this precarious colony.24

22 Laws and Liberties of Massachusetts, p. 15. The governor or deputy governor, “with any two
other Magistrates,” was empowered to form a strangers’ court.
23 David T. Konig, “‘Dale’s Laws’ and the Non-​Common Law Origins of Criminal Justice in
Virginia,” Am. J. Legal Hist. 26:354, (1982).
24 Wesley Frank Craven, The Southern Colonies in the Seventeenth Century, 1607–​1689 (1949),
p. 106; see also W. F. Prince, “The First Criminal Code of Virginia,” Ann. Rpt. Am. Hist. Ass’n, vol. 1
(1899), p. 311.
 The Beginnings: American Law in the Colonial Period 11

Once the colony was on firmer footing, the Code no longer seemed so neces-
sary. The code was gone by 1620. The colony needed men; and mildness, along
with the promise of self-​government, was more likely to attract people to this
strange new world. In the 1620s, a kind of proto-​legislature was already at work.
By the late 1630s, Virginians were making laws, through an institution in which
local people had a share of power. But the savagery of Dale’s code did not vanish
altogether; at least one scholar feels that “the old tradition of swift and discre-
tionary justice unbound by common law” was still thriving in Virginia. Its spirit
was, ultimately, felt (perhaps) in the governance of slaves.25
As in Massachusetts, 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”; in 1658,
sittings were reduced to three a year, in 1661, to two; the body was then called
a “General Court.” The general court handled the trial of serious crimes. It also
reviewed cases initially decided in the county courts. The county courts began
as “Monthly Courts” in 1623; the name was changed in 1642: by then, county
government had become fully established. The county courts were manned at
first by “commissioners”; after 1661, these men were called justices of the peace.
The county courts, as in Massachusetts, had a much broader mandate than
courts have today. They did a lot of work we would consider administrative—​
collecting taxes, building roads, and regulating taverns and inns. They also han-
dled probate affairs. This feature of county courts was quite typical in colonial
America. It was replicated in other colonies too.26
The county courts were at the heart of colonial government. They were, on
the whole, cheap, informal, and accessible. 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.27 Courts and courthouses were not particularly majestic. We are used to
big, imposing courthouses, buildings that look like mock Greek temples, and
which dominate the town square. We think of them, too, as places of great dig-
nity. What are we to make, then, of the fact that in late seventeenth-​century
Maryland, we hear complaints about “Great Disorders and Irregularrytes of
Proceedings,” or of a man punished for refusing to take his hat off in court, or
of the order, in October 1697, that no person whatsoever “either Wittingly or

25 Konig, op. cit., p. 375.

26 On Virginia, see George B. Curtis, “The Colonial County Court: Social Forum and Legislative
Precedent, Accomack County, Virginia, 1633–​1639,” Va. Mag. Hist. & Biog. 85:174 (1977); see also
Paul M. McCain, The County Court in North Carolina before 1750 (1954).
27 Peter Charles Hoffer, Law and People in Colonial America (1998), pp. 36–​37.
12 Part I: The Beginnings: American Law in the Colonial Period

willingly” was to “presume to piss against any of the walls Posts or Railes or
within the outside railes of the State house.”28
As more and more records are published, a vivid picture of colonial justice
emerges. One can, for example, look in on the county court of Prince Georges
County, Maryland, meeting “att Charles Towne the twenty fourth day of
November in the Eight yeare of the Reigne of our Sovereigne Lord William the
third” (1696). Five commissioners were present. The weather was hard, how-
ever, so the court “did Immediately Adjourne to Mr. David Smalls Store house
by reason the new house Intended for a Church is Soe open that they Cannot
Sitt.” At Small’s, the court discharged its business—​judicial, administrative,
quasi-​legislative. James Paine, a seven-​year-​old boy, was bound over as an ap-
prentice “by his Fathers Consent.” James was to serve Samuel Westley “untill he
arrives to twenty one years of Age.” Benjamin Berry and Robert Gordon had
been drunk at an inn, “profanely Cursing and Swareing”; they were ordered to
be put in the stocks. A number of citizens recorded marks for their animals;
William Bailey recorded “an over halve and an under bitt on the Right Eare
and a Swallow forke on the Left Eare.” George Hutcheson humbly petitioned
that “by Gods providence” he had “been Grievously Afflicted with an ulcerated
Legg for these many years,” and “being thus . . . disenabled from getting my
Livelyhood by any hard Labour I gett a poore maintenance in teching of
Childred to reade but being growne in years and my Ability or Capasity being
but Small I only gett my Accomedations and a few old Cloaths to Cover my
nakedness”; he therefore begged to be “Excused . . . from paying his Leavye”;
the court allowed this to him. Estate matters were handled. Constables were
chosen. A grand jury met and considered criminal matters: “Elizabeth Pole
Servant woman,” who was accused of “haveing a bastard.”29 At another session,
the court licensed Jonathan Wilson to “keepe Ordinary [an inn] in the Saide
towne Called Charles Towne dureing pleasure,” complying with “the Act of
Assembly Conserning Ordinary keepers.” At another, it was ordered “that the
Sherife receive of every Taxable person Ninety three pounds of Tobacco.” At
another, the court appointed overseers of highways, and heard a complaint that
a bridge was “so much out of repair that wee cannot goe over there without the
Danger of horse and man.”30
Some seventeenth-​century colonies organized their systems in ways some-
what different from the patterns in Virginia and Massachusetts. But the overall
structures tended to be the same, even though the names of the courts were

28 Alan F. Day, A Social History of Lawyers in Maryland, 1660–​1775 (1989), pp. 16–​17.
29 Joseph H. Smith and Philip A. Crowl, eds., Court Records of Prince Georges County, Maryland,
1696–​1699 (1964), p. 59ff.
30 Smith and Crowl, op. cit., pp. 168, 375–​76, 615.
 The Beginnings: American Law in the Colonial Period 13

not the same in all colonies. The grand council of South Carolina, in the seven-
teenth century, was the basic, undifferentiated court of that colony; it sat now
as a court of probate, now as chancery, now as admiralty, now as a common law
court.31 It dealt with the defense and safety of the colony, allocated lands, and
laid down rules and regulations. 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 name was unique, but the broad jurisdiction was not. The
grand council of South Carolina had an interesting fate. It got the reputation
of being a mere tool of the interests of the proprietors. Those leading citizens
who were opposed to the proprietors disliked and distrusted the court. In 1702
proprietary government collapsed. That doomed the grand council, which soon
adjourned—​forever.32
In New York, legal institutions began work, quite literally, in a different
language. Its schouts and schepens were Dutch. The English took the colony
in the middle of the seventeenth 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 officially introduced. Dutch speech, personnel, and
procedures could not be eliminated by fiat. As late as 1675, one could find, in
some cases in court, a “curious melange” of “Dutch terminology and English
remedy and procedure.” By the early 1680s, however, English terms and
processes were clearly dominant.33 This was an early example of what we might
call common-​law imperialism; the common law would later repeat its triumph
in Florida, Illinois, Texas, California, and Hawaii, and of course mostly (though
never entirely) some with regard to the legal cultures of the older populations.
In Pennsylvania, William Penn had a Quaker’s distaste for formal law and lit-
igation. Penn’s laws (1682) called for appointment of three persons in each pre-
cinct as “common peacemakers.” The “arbitrations” of these peacemakers were
to be as “valid as the judgments of the Courts of Justice.”34 This was an early but

31 Anne K. Gregorie, ed., Records of the Court of Chancery of South Carolina, 1671–​1779 (1950),
pp. 22–​25.
32 Preston W. Edsall, ed., Journal of the Courts of Common Right and Chancery of East New Jersey,
1683–​1702 (1937), p. 34.
33 Richard B. Morris, ed., Select Cases of the Mayor’s Court of New York City, 1674–​1784 (1935),
p. 43. In Westchester County, however, which was settled by English-​speaking people, common-​law
terminology was used from the beginning. In court records of March 22, 1659, there is a plaintive
remark of the clerk that “the coppi of the sentence of the high corte being ritten in Duch we could
not understand it.” Dixon R. Fox, ed., Minutes of the Court of Session, Westchester County, 1657–​1696
(1924), pp. 12–​13. On the transition to common law in New York, see also Herbert A. Johnson, Essays
on New York Colonial Legal History (1981), pp. 37–​54.
34 Edwin B. Bronner, William Penn’s “Holy Experiment,” (1962), p. 36; on the use of peace bonds,
see Paul Lermack, “Peace Bonds and Criminal Justice in Colonial Philadelphia,” Pa. Mag. Hist. &
Biog. 100:173 (1976).
14 Part I: The Beginnings: American Law in the Colonial Period

not unique example of a certain Utopian strain in American law, or at least in

popular legal culture. In Dedham, Massachusetts, for example, from 1636 on,
disputes could be mediated by “three understanding men,” or by “two judicious
men,” chosen by the disputants or by the community. There were also attempts
at replacing trials with arbitration proceedings in South Carolina, Connecticut,
and New Jersey.35 In Kent County, Delaware, in 1680, Peter Groendyk and
William Winsmore, by “Joynt Consent,” referred their differences to the court
for resolution. It was a matter of “account of debt and Credit.” The court
“thought fi[t to] appoint” two arbitrators to decide the case; these two would,
in case of a “non agreement . . . chuse a third person as an Umpire [to] make a
formal End thereof.”36
The tendency to make detours around formality manifested itself, from time
to time, in the noble experiment of prohibiting lawyers—​there was a feeble at-
tempt in this direction in early Virginia—​or in attempts to reduce or abolish
formal law. There is, in much of American history, a persistent dream of doing
without lawyers, and there is a related dream about simple, clear natural justice,
stripped clean of obfuscation and jargon, a book of law that everyone might
read for himself. The codification movement of the nineteenth century, among
others, drew strength from this source.
Early court organization in Maryland was unrealistic, but not Utopian, and
in ways quite different from the ways of Quaker Pennsylvania. 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 exotic
beasts probably never came to life at all. Records of one manorial court survive;
it actually sat between 1659 and 1672. But to transplant such institutions was,
on the whole, as futile as to introduce ostriches and camels in the American
West. Generally speaking, then, despite diversity and experimentation, colonial
conditions shaped court organization, and moved it in all, or almost all, the col-
onies along similar lines in the seventeenth century. Court structures evolved
from simple to complex. English models, English terms, and English customs
were more or less influential everywhere, but less so in the early years, more
so in the later ones. Nowhere were executive, legislative, and judicial powers
clearly fenced off from each other. As time went on, there was more division of

35 Jerold S. Auerbach, Justice without Law? Non-​legal Dispute Settlement in American History
(1983), pp. 25–​30. But arbitration itself underwent a process of “legalization” in the eighteenth
century, according to the research of Bruce H. Mann, centering on Connecticut; Mann connects
this process with the decline of communalism. Bruce H. Mann, Neighbors and Strangers: Law and
Community in Early Connecticut (1987), pp. 120–​23.
36 Leon de Valinger Jr., ed., Court Records of Kent County, Delaware, 1680–​1705 (1959), pp. 4–​5.
 The Beginnings: American Law in the Colonial Period 15

labor among institutions. Legislatures still heard appeals, but they conducted
few trials or none. For all their isolation, the colonies owed some sort of alle-
giance to the crown. They were, in one sense, lost, distant islands, floating alone
and unsupervised. Their charters expressed an explicit duty: colonial law must
conform to the law of England. The king, of course, was far away. But he had at
least nominally the last word, especially in chartered colonies. The settlements
that were modeled after trading companies were subject, at least in theory, to
the company’s home office, usually located in London. In proprietary colonies,
the proprietor held some sort of appellate power.
The colonies, of course, realized that they were English, and subject to
England. But they were jealous of their own self-​rule. The Child Remonstrance,
in Massachusetts Bay (1646), illustrates the point. Dr. Child attacked the ruling
circles of the colony, in writing. He called for a return to the “Fundamentall and
wholesome Lawes” of England. He pointed to the large gap between the laws of
England and the laws of Massachusetts Bay. By implication, he was asking the
English to close the gap in some way. The colony tried to keep Child’s writings
from reaching England. John Cotton supposedly warned a shipmaster not to
“carry any Writings” that were “complaints against the people of God”; it would
be “as Jonas in the ship,” he said. If “storms did arise,” the master should “search
if they had not in any chest or trunk any such Jonas aboard”; any such writings
should be thrown to the boiling sea.37
The colony did not rely on the storm gods alone; it also argued, in England,
that its charter precluded appeals from the colony to London. By this time, it
was already clear that there was a problem to be resolved: What was the exact
relationship between center and periphery, between London and the colonies?
It was also clear that the colonies would resist encroachments from London.
England did not really found an empire; it stumbled into one. It worked out an
imperial policy slowly and haltingly; meanwhile, the tiny settlements along the
coast grabbed almost total autonomy for themselves. The colonies were small,
of marginal importance, and a long way from London: all of this insulated them
from king and council. If colonial and English law, in substance and procedure,
converged at all in the seventeenth century, it was not imperial policy so much
as the result of convenience and free will. And English law was convenient.
Massachusetts Bay was the most independent of the colonies. But when the
colonists compiled their code of 1648, they sent to England for six legal texts,
including Coke on Littleton.38

37 Robert Child, New England’s Jonas Cast Up at London (1869), p. 26.

38 Haskins, op. cit., p. 135.
16 Part I: The Beginnings: American Law in the Colonial Period

Especially in proprietary and crown colonies, there were absentee landlords

and overlords. These fine gentlemen assumed, naturally enough, that the law of
England was in force in their properties. Also, fresh boatloads of Englishmen
constantly landed in America; doctrines, documents, and devices came with
them. There was constant tension between the colonial legal dialects and the
mother tongue. In 1676, Governor Carteret had granted, by patent, to Simon
Rouse, certain land in East New Jersey, including “58 acres of arable land &
six acres of meadow” situated “upon Raway River in the County of Essex.” The
grant read: “to Have and to Hold to him the said Simon Rouse his Heires or
assigns for ever.” Rouse left the land by will to Frances Moore. Litigation arose
in the 1690s over whether Moore had valid title to the land. One side referred to
a doctrine, which he took from “My Lord Cooks Institutes” (the classic English
treatise by Lord Coke). The doctrine insisted that a grantor had to use the words
“to A and his heirs and assigns,” in order to make a grant in fee simple (that is,
full ownership). The word and was essential; if the grantor used or instead, what
resulted was “only an Estate for life,” which meant that Rouse had no power to
dispose of the land by will; his title ended at his death. This mumbo jumbo was
indeed the law of England, according to the gospel of Sir Edward Coke, and a
jury verdict so decided. The verbal misstep had been made, it seems, “through
the ignorance of those infant times.” But the decision was a crucial one; it cast
in doubt the rights of many landholders, who claimed through Moore. The
province was thrown into an uproar. Remedial legislation was proposed, but
the governor blocked it; he hoped to force payment of delinquent quit-​rents,
as the price for smoothing out the disputed titles. Ultimately, the proprietary
party conceded the point, and an act was passed declaring that all of Governor
Carteret’s “grants, charters, or patents” bearing the “particle or . . . in the ha-
bendum” should be “taken, deemed and esteemed as effectual in law” as if the
word and had appeared in place of the or.
As this instance shows, English law was full of hidden traps, and these traps
were particularly dangerous in a new country, with very few legal technicians.
Landowners made use of these doctrines, when it suited their purposes, and
never mind colonial customs and habits.39 The king’s government in London
was not imposing these doctrines on the colonists. In this case, the strings that
bound colonial law to English law were not imperial strings but social and
political.

39 Preston W. Edsall, ed., Journal of the Courts of Common Right and Chancery of East New Jersey,
1682–​1702 (1937), pp. 105–​8, 273.
Another random document with
no related content on Scribd:
Valentinian document in, does not quote Fourth Gospel, ii. 117 n.
1, 177;
MS. of, and its provenance, ii. 134, 135;
heavens of Ineffable One and First Mystery not described in, ii.
146;
Melchizidek seldom mentioned in, ii. 148 n. 1;
thought by some the Interrogations of Mary, ii. 157;
doctrine of interpretation in, ii. 157 n. 2;
appears at first sight entirely Ophite, ii. 158;
but more clearly Valentinian, ii. 159, 160, 161;
Authades of, compared to Valentinus’ Demiurge, ii. 162 n. 2;
Adamas of, compared to Valentinus’ Diabolos, ii. 163;
nearness of Parusia dominant in part of, ibid.;
description of Millennium in, ii. 164;
lesser initiates must give passwords and seals, ii. 165, 169;
mystery of the First Mystery is Baptism, ii. 168-170;
mystery of the Ineffable One is the Eucharist, ii. 170-171;
supreme revelation of book union with Jesus, ii. 171;
“Mysteries of Light” not described in P.S. proper, ii. 173;
open to all the world, ii. 174;
Egyptian character of book (Maspero), ii. 175-177;
probably by Valentinus, ii. 178;
read by Fathers?, ii. 179;
astrology condemned in, ii. 185;
cryptogram between 1st and 2nd vols of, ii. 188 n. 2;
fragment in Bruce Papyrus links P.S. with Texts of Saviour, ii. 192,
193;
parent work on which all the others based, ii. 194;
Apelles’ teaching as to body of Jesus from same source as, ii.
219;
twelve hours theory of, like that of Tun-huang treatise, ii. 293 n. 2;
quoted, i. 195 n. 1; ii, 54 n. 2, 78, 92 n. 3, 144 nn. 3, 4, 5, 8, 145 n.
1, 146 nn. 2, 3, 147 n. 5, 148 nn. 1, 2, 3, 149 nn. 1-5, 151 n. 3,
152 nn. 1, 2, 154 n. 1, 155 nn. 1, 4, 156 nn. 1, 4, 161 nn. 1, 3, 4,
162 n. 3, 163 n. 2, 164 nn. 1, 2, 4, 5, 6, 165 n. 1, 167, 168, 169
n. 2, 170, 171, 173, 174, 175, 182 n. 2, 184 nn. 1, 4, 185 nn. 1,
2, 188, 193 n. 4, 194 n. 1, 292 n. 2, 293 n. 2.
 See Petermann, Schwartze
Plato, alone of ancients sees Socrates’ monotheism, i. 11;
says few real initiates in mysteries, i. 65;
chief authority for charlatanism of Orpheotelestae, i. 140;
creator of, not jealous, i. 149 n. 1;
his ideas the paradigms of perceptible things, i. 198;
God of, too high to touch matter, ii. 42;
says souls given daemons as guides through life, ii. 110 n. 1;
Marcion never alludes to Logos of, ii. 214;
quoted, i. 65, 140, 149 n. 1; ii. 110 n. 1
Pleroma, the, word Church apparently used by Ophite writer for, ii.
43;
Ophite Christos descends from, to Sophia, ii. 59;
Ophite, consists of Father, Son, Mother, and Christos, ii. 64;
the same in Diagram, ii. 68;
perfect Ophites share in, ii. 76;
Valentinus’, originally consists of twenty-eight members, ii. 104 n.
1;
Christos and Holy Spirit added to, after Fall of Sophia (Valentinus),
ii. 105;
Stauros partly within and partly without (id.), ii. 105 n. 2;
Ectroma called Sophia Without (id.), ii. 106;
Jesus the Joint Fruit of (id.), ii. 106 n. 2, 110, 113, 117, 159 n. 3;
four “places” outside (id.), ii. 108;
Pneumatics to enter into (id.), ii. 110 n. 2;
Christos and Holy Spirit remain within (id.), ii. 114;
projects another thirty aeons (id.), ii. 144 n. 8
Pliny, solar monotheism of, i. 118;
his account of Essenes, i. 155;
quoted, i. 155 n. 1
Plutarch, his monotheism (Dill), i. lvii;
makes Zoroaster 5000 years before Trojan War, i. lxii;
a chief source of our knowledge of Eastern religions, i. 9;
authority for meeting of Philip and Olympias, i. 22;
his contempt for oracles of foreign gods, i. 23;
 legend of Osiris and his de Iside et Osiride, i. 33-35, 43, 48;
does not conceal identification of Dionysos with Osiris, ii. 65 n. 4;
says water the emblem of Osiris, i. 68;
gives episode of Isis as swallow, i. 70 n. 1;
puts festival of Birth of Horus at spring equinox, i. 71;
identifies Greek Typhon with Egyptian Set, i. 105;
Dionysos of, once human, but deified for merit, i. 144 n. 3;
Osiris and Set neither gods nor men but great daemons, ii. 16;
acquainted with Persian religion, ii. 214 n. 2;
says worship of Mithras first introduced into Rome by Cilician
pirates, ii. 228, 229;
describes Persians as sacrificing to Hades, ii. 239;
calls Mithras μεσίτης, ii. 249;
equates Hades with Ahriman, ii. 255;
thinks evil must have separate principle of its own, ii. 289 n. 3;
quoted, i. 22, 23, 48, 70 n. 2, 144 n. 3; ii. 16, 214 n. 2, 228, 229,
249, 255, 289 n. 3.
See Dionysos, Hades, Theopompos of Chios
Pluto, name of Hades, i. 40, 47, 48;
ruler of Hades, called in magic Huesimigadôn, i. 99, 100;
one of the gods of Samothrace, i. 136 n. 2;
in Orphic hymn to Persephone, i. 142, 143.
See Hades
Pneuma, name of Valentinian Sophia, ii. 109
Point, the Little or Indivisible, source of everything in universe ap.
Simonians, i. 194 n. 3;
and ap. Basilides, ii. 90 n. 5;
referred to in Bruce Papyrus, ii. 292 n. 1
Polycleitos, his statue of Dionysos with attributes of Zeus, i. 125 n. 2
Pomoerium, Alexandrian gods expelled from, temp. Tiberius, i. 78
Pompeii, Isium at, when founded, i. 53
Pompey the Great, suppression of Cilician pirates by, ii. 229
Pontus, birthplace of Marcion, ii. 9, 204;
and of Mithridates, ii. 204;
 Tertullian’s rhetorical exaggeration as to, ii. 204 n. 3;
its kings claim descent from Persian heroes, ii. 225 n. 1
Porphyry, the neo-Platonist, says Egyptian magicians threaten gods,
i. 104 n. 3;
his account of Essenes copied from Josephus, i. 155;
describes books on Mithras worship, ii. 236;
says Mithraic cave represents universe, ii. 247, 249;
says Mithraists teach metempsychosis, 257;
gives “eagles” as name of Mithraist Fathers, ii. 265 n. 2;
says High Priest of Mithras may only marry once, ii. 268;
quoted, i. 104 n. 3, 155; ii. 236, 249, 265 n. 2, 268
Poseidon, the god, Greek type of, on Indian coins, i. 17 n. 2;
of Homer, shares empire with Zeus, i. 46;
cattle and horses sacrificed to, i. 95;
on Mithraic monuments, ii. 238.
See Neptune
Powers, the Three Triple. See Tridynami
Praedestinatus, heresiology of, its sources, ii. 10 n. 1;
describes “rabbling” of Ophites by Christian bishops and mob, ii.
77
Praetextatus, Vettius Agorius, his rank in Mithraism, ii. 268;
one of the last Pagan noblemen, ii. 358.
See Paullina
Praxidice, Orphic epithet or variant of Persephone, i. 142
Precept, the First, in Pistis Sophia perhaps personification of Jewish
Torah, ii. 141;
highest spirit in Treasure-house, ii. 147;
power passed into Confusion originates in, ii. 164
Preller, says that Orpheus is a “collective” person, i. 121 n. 1
Prepon, the heresiarch, a Syrian teaching in Rome, ii. 9;
follower of Marcion who thinks Jesus intermediate between good
and evil, ii. 220
Priests, state officials in Persia and Egypt, i. 24;
 of Greek confraternities, i. 25;
greed of Egyptian, i. 28;
always powerful in Africa, i. 31;
their disastrous rule in Egypt, i. 31, 32;
hereditary, of Mysteries, i. 39;
native Egyptian, keep aloof from Alexandrian, i. 51;
of Isis on Herculaneum frescoes, i. 68, 69;
importance of, in Alexandrian religion, i. 76, 77;
secular and regular, in same, i. 79, 80;
break up of Asiatic and Egyptian colleges of, spreads magic, i.
107;
necessity of, among Gnostics, ii. 22;
temporal power of Anatolian, ii. 29;
Cybele’s eunuch, ii. 31;
high priests of Magic Papyri, ii. 34 n. 4;
mention of, among Naassenes, ii. 66;
among other Ophites, ii. 77;
Valentinians probably frequent orthodox, ii. 125;
of Marcionites, ii. 205;
of Persians, the Magi, ii. 233, 234;
of Cybele, ally themselves with Mithraists, ii. 258;
of Mithras called “Father,” ii. 261;
qualifications and duties of Mithraic, ii. 267, 268;
like modern churchwardens, ii. 273;
Manichaean, called sons of knowledge, ii. 312;
organization of neo-Manichaean, ii. 330
Proclus, the neo-Platonist, gives Isis’ assertion of eternity and
virginity, i. 63;
identifies Bendis with Persephone, i. 137;
makes all gods contained in Dionysos, i. 146 n. 1;
makes man come from tears of gods, ii. 153 n. 2, 176;
quoted, i. 63, 137 n. 2; ii. 153 n. 2
Prohegumeni, the Two Forerunners of the Treasure-house in the
Pistis Sophia, ii. 149
Prophthasia, Alexander at, said to receive grapes from Greece, i. 4
n. 1.
 See Farrah
Proserpine, Isis called Stygian P. by the Sicilians, i. 56;
Lucius at initiation treads threshold of, i. 62.
See Persephone
Prunicos, or the Substitute, name of Sophia among early Ophites, ii.
45, 59.
See Achamoth, Sophia
Psammetichos, King of Egypt, letter of Nephotes to, on
lecanomancy, i. 101
Psyche, name of Valentinus’ Demiurge, ii. 109
Ptah, the god, one of oldest gods of Egypt, i. 32;
priesthood of, in early times, i. 33;
Ptolemy Epiphanes called the beloved of, i. 51
Ptah-Seker-Osiris, the god, triune deity of Saitic period, i. 33; ii. 195
Ptolemy I Soter, called Saviour-god, i. 18;
his wisdom in choosing and ruling Egypt, i. 28, 29;
his preparationsfor its defence, i. 29, 30;
decides to found syncretic religion uniting Egyptians and Greeks, i.
30;
his court and capital both Greek, i. 44;
his Museum and its “stuffed capons,” i. 45;
his dream as to Serapis-statue, i. 48, 77;
Egyptians reject his religious schemes, i. 51;
success of his religion outside Egypt, i. 52, 53, 54;
five centuries between him and Apuleius, i. 76;
seizes Jerusalem, i. 151;
colonizes Samaria with “Macedonians,” i. 177
Ptolemy II Philadelphus, Asoka’s mission to, i. 20;
attribution of foundation of Museum to, erroneous (Bouché-
Leclercq), i. 44 n. 2
Ptolemy IV Philopator, decline of Egyptian power after, i. 151
Ptolemy V Epiphanes, his coronation at Memphis (Rosetta Stone), i.
51
Ptolemy VI Philometor, petitions to, of Ptolemy son of Glaucias, i. 79
Ptolemy IX Physcon, expels philosophers from Museum, ii. 88
Ptolemy, the son of Glaucias, recluse in Serapeum, i. 79. See
Kenyon
Ptolemy, the Valentinian, his theory of the Cosmocrator as the
creation of the Demiurge, ii. 108 n. 1;
a leader of the Italic School, ii. 119;
his letter to Flora, ii. 131
Punjab, part of, in Persian Empire, i. 1
Purser, Louis Charles, collects authorities on Orpheus, i. 121 n. 1
Puteoli, temple to Serapis at, 100 B.C., i. 53
Pythagoras, pupil of Pherecydes of Syros, i. 124;
says our souls part of world-soul, i. 129;
his theory of transmigration, ibid.
Pythagoreans, the, all early Orphic poems ascribed to, i. 122;
Orphics take transmigration from, i. 127;
find withdrawal from world necessary to salvation, i. 129;
Jews take Ecpyrosis from (Hippolytus), i. 155 n. 2

Quadratus, his lost Apology for Christianity, ii. 202, 203 n. 1

Ra, the god, corporation of priests of, earliest in Egypt, i. 31;

the sun-god, i. 31, 63;
Osiris invoked with him in Book of Dead, i. 32;
legend of, and Isis, i. 38 n. 2; ii. 37 n. 1;
increase of power of, with XIIth Dynasty, i. 63 n. 1;
the serpent Apep his enemy, ii. 78
Ramsay, Sir William, F.R.S., has revived Alexandrian alchemist’s
dream of transmutation, i. 45
Ramsay, Sir William Mitchell, says name of Christians not mentioned
by classic writers, i. 1 n. 1;
 all gods of mysteries forms of One, i. 56 n. 4;
date of Hadrian’s visit to Egypt, i. 86 n. 5;
thinks Anatolian Jews coalesce with natives, ii. 28;
state of Phrygia in Ist cent., ii. 29;
characteristics of Anatolian religion, temp. Apostles, ii. 29, 30, 67
n. 3;
importance of Mother of Gods due to matriarchate, ii. 40;
many names of divine pair worshipped in Phrygia, ii. 67 n. 1;
androgyne nature of same and symbol of double axe, ibid.;
quoted, i. 1 n. 1, 56 n. 4, 86 n. 5; ii. 28 n. 3, 29 n. 5, 30 nn. 1, 2, 3,
31 n. 1, 40 n. 3, 67 n. 3
Raphael, the archangel, name of, in Magic Papyri and O.T.
Apocrypha, ii. 34;
in Diagram name of terrestrial daemon, ii. 70;
planet Mars connected with, ii. 75 n. 1
Rawlinson, Canon George, on government of Persian Empire, i. 2 n.
2, 3 nn. 2, 3
Rawlinson, Sir Henry, Omen Tablets in Cuneiform Inscriptions of
W.A., i. 114 n. 1
Rayet, M. Octave, shows identification of Demeter and Persephone
from inscription and vases, i. 46 n. 1
Reade, Winwood, his Martyrdom of Man quoted, i. 11 n. 3, 149 n. 2;
ii. 2, 3, 227 n. 1
Reformation, the German, sects of, compared to Gnostics, ii. 19;
dissidents near to, strictly Christian, ii. 20;
like makers of, Marcion appeals to Scripture, ii. 207;
Manichaeism may have survived till, ii. 357;
leaves Church stronger than before, ii. 360
Reinach, M. Salomon, Orphic password discussed by, i. 134 n. 1
Renaissance, the, Hecate still goddess of sorcerers through Middle
Ages and, i. 147;
sorcerers of, use words of Mass, ii. 267
Renan, Joseph Ernest, warlike characteristics of great goddesses, i.
58;
describes policy of Church of Rome as to Pagan customs, i. 85;
abundance of diviners and sorcerers in Rome of Nero, i. 108;
says Bar Coziba called Monogenes (George the Syncellus), i. 124
n. 3;
account of War of Extermination (Derenbourg), i. 163 n. 1;
revolt of Jews under Trajan, i. 172 n. 1;
says Gnosticism attacks infant Church like croup, ii. 21;
his interpretation of Caulacau, ii. 94 n. 3;
quoted, i. 83 n. 1, 85 n. 1, 124 n. 3, 163 n. 1; ii. 21 n. 1, 94 n. 3
Réville, Albert, his controversy with Gladstone on Genesis, i. liii;
quoted, i. 93 n. 4
Revillout, Eugène, thinks words in Egyptian spell, adaptation of
those of the Mass, i. 87;
to true Gnostic all religions merely veils, ii. 18;
quoted, i. 87 n. 3; ii. 18 n. 4
Rhacotis, Egyptian name of site of Alexandria, i. 44
Rhamnusia, a name of Nemesis identified with Isis, i. 56
Rhapsodists, the, their theogony, i. 123;
Orphic poems recited by, at games, i. 135, 136;
Ophites probably get lines of Homer and Pindar from, ii. 83
Rhea, the goddess, the earth-goddess sometimes called Cybele,
Demeter etc., i. 124, 126;
mother of Attis, i. 139 n. 1; ii. 54
Rhodes, worship of Alexandrian gods at, i. 52
Rhodo, refutes Tertullian’s slanders against Marcion, ii. 218;
his quotation from Apelles the Marcionite, ii. 219;
other Marcionite leaders mentioned by, ii. 220
Ritschl, his theory that both St John Baptist and Jesus were
Essenes, i. 156 n. 1
Rochat, E., on dates of birth and death of Manes, ii. 279 n. 1, 282 n.
2;
 on authenticity of Acta Archelai, ii. 280 n. 3;
on Manes’ father Fatak or Patecius, ii. 285 n. 2;
on authenticity of letter to Marcellus, ii. 288 n. 2, 289;
on Mandaites as descendants of Mughtasilah, ii. 305 n. 1;
quoted, ii. 279 nn. 1, 3, 280 n. 2-6, 281 nn. 1, 3, 5, 282 n. 2, 283
nn. 1, 6, 285 nn. 2, 4, 286 nn. 3, 5, 287 n. 2, 289, 305 nn. 1, 3
Rogers, Dr Robert William, exposes Winckler’s and Jeremias’ astral
theory, i. 115 n. 1
Romans, the, take over Greek pantheon en bloc, i. 17;
frustrate Antiochus Epiphanes’ attack on Egypt, i. 151;
their toleration for Jewish religion and customs fruitless, i. 163;
punish Palestinian towns for rebellion, temp. Vespasian, i. 170;
receive orgiastic worship of Cybele, ii. 30 n. 3;
their long struggle with Persians, ii. 225-227;
their severe laws against Manichaeism, ii. 278, 356
Rome, becomes monarchical as she acquires world-power, i. 15;
welcomes Euhemeristic theory, i. 19;
Alexandrian gods obtain a foothold in, i. 53;
their worship becomes an established church in, i. 79;
gathering of charlatans in, temp. Nero, i. 108;
Orphic gold plates found at, i. 131;
Simonians numerous in, i. 199;
all heretics attracted to, ii. 203
Roots, the six of Simon Magus, i. 180;
expression used by Empedocles and Athamas the Pythagorean, i.
197
Rosetta Stone, the, marks turning of Ptolemies to ancient Egyptian
gods, i. 51
Roxana, wife of Alexander the Great, i. 5, 12
Rutilianus, accomplice and dupe of Alexander of Abonoteichos, i. 24

Sabaoth, used in Hebrew spell identifying Yahweh with Zeus and

Serapis, i. 106;
 name belonging to a secret theology (Origen), ii. 34, 35;
Ophite ruler of planetary sphere (Irenaeus), ii. 47;
the same in Diagram, ii. 69;
address to, ii. 73;
name recurs in Pistis Sophia, ii. 158
Sabaoth the Good, the Great, soul of Jesus on Incarnation received
from (Pistis Sophia), ii. 139, 149;
the emanation of Jeû and acts through messenger (P.S.), ii. 149;
why so called, ii. 149 n. 2;
appears in Bruce Papyrus, ii. 193
Sabaoth the Good, the Little, messenger or substitute of Great
Sabaoth, ii. 149;
his action at Incarnation, ii. 149 n. 2;
identified with Gate of Life, ibid.;
appears in Texts of Saviour, ii. 149 n. 2, 187;
gives cup of perception to righteous soul in same, ii. 187, 309 n. 2
Sabaoth Adamas, in Pistis Sophia a wicked power, ii. 149 n. 2;
in Texts of Saviour ruler of Wicked Aeons, ii. 182;
in same bound with his subjects to Sphere, ii. 182;
his “receiver” Jaluha gives cup of oblivion to soul, ii. 187
Sabazius, the god, comes into Greece before Alexander, i. 17, 137;
a Phrygian god called “Lord of all” and son of Cybele, i. 137;
rites of, described by Demosthenes, i. 138;
identified with Attis and Adonis, i. 139 n. 1;
for Orphics, a form of Dionysos, i. 145;
Phrygia seat of worship of, ii. 28;
called Pappas, ii. 57;
male aspect of androgyne deity of Anatolia (Ramsay), ii. 67 n. 3
Saboï, cry of initiates in Sabazian mysteries, i. 138
Sabos, in Orphic hymn possibly name of Iacchos, i. 138 n. 2
Saclas or Asaqlun, son of King of Darkness among Peratae and
Manichaeans, ii. 329
Sadducees, dominant party among Jews, i. lv, 162;
a “philosophic” sect (Josephus), i. 151;
 their sympathy with Hellenism, i. 162
Salathiel, The Apocalypse of, part of Fourth Esdras called, i. 167
Salmon, Dr George, his theory of forgery of Gnostic documents, i. lxi
n. 1; ii. 11 n. 2;
on authorship of Clementines, i. 178 n. 1;
on discovery of Philosophumena, ii. 11 n. 2;
thinks return of worlds to Deity rather than salvation of mankind
aim of Gnosticism, ii. 42 n. 2;
his interpretation of name of Ialdabaoth, ii. 46 n. 3;
and of Caulacau, ii. 94 n. 3;
Marcion’s life described by, ii. 204;
on early establishment of Marcion’s heresy, ii. 207;
quoted, i. 178 n. 1; ii. 11 n. 2, 41 n. 1, 42 n. 2, 94 n. 3, 204 n. 2,
205 n. 3, 206 nn. 3, 5, 207 nn. 3, 4, 222 n. 1
Salome, speech of Jesus to, in Gospel of Egyptians, i. 196 n. 2;
questions of, in Pistis Sophia, ii. 157
Samarcand, modern name of Maracanda, a foundation of
Alexander’s, i. 5 n. 3
Samaria, Simon Magus’ deeds in, i. 176, 178, 191 n. 3;
re-colonized by Alexander and Ptolemy Soter, i. 177;
destroyed by John Hyrcanus, and rebuilt by Gabinius and Herod
the Great, ibid.;
its mixed population of Semites and Persians, i. 197
Samaritans, the, hatred between Jews and, i. 177;
religion of, temp. Christ, ibid.;
reverence of, for Pentateuch, i. 184 n. 2;
Simon said to appear to, as the Father, i. 192;
appeal of Simon’s doctrines to, i. 202
Sammael, a name of Ophite Ophiomorphus, ii. 52;
identified with Satan in Ascension of Isaiah, ii. 69 n. 2, 75 n. 1
Samothrace, seat of Cabiric Mysteries, i. 61, 136 n. 2;
the god of, called Adam, i. 137 n. 1, 139 n. 1; ii. 54 n. 6
Sandracottus. See Chandragupta
Sapor or Shâpûr I, the Shah, exiles Manes from Persia, ii. 281
Sarapis or (Lat.) Serapis, the god, his recluses or monks, i. 20, 80,
86;
charlatans round altars of (Plutarch), i. 23;
purification of religion of, i. 24;
typical statue of, i. 49;
Modius distinctive attribute of, i. 50;
Ptolemy compels Egyptians to take him into their temples
(Macrobius), i. 52;
early temple to, at Puteoli, i. 53;
“Sarapis alone is Zeus,” i. 55;
all Greek and foreign gods included in, i. 56;
merciful and compassionate to man, i. 58;
friend of man in next world, i. 59, 60;
initiation into “nocturnal orgies” of (Apuleius), i. 64;
special hymn and air addressed to, i. 68, 72;
identified with Osiris (Minucius Felix), i. 70;
April festival of, i. 71;
Oracle of, at Alexandria, i. 77;
identified with Asklepios, i. 78, 87;
statue of, in Alexander Severus’ lararium, i. 82;
statue and temple of, at Alexandria destroyed by Christians, i. 84;
ritual of, adapted to Christian use, i. 85;
joint worship of, and Christ (Hadrian), i. 86;
trinity of, Sarapis, Isis, and Horus, i. 88;
the “Great God” (Mag. Pap.), i. 101, 104, 125 n. 3;
representation of, on scarab used in Jewish spell, i. 106, 107;
identified with Sun, i. 118;
books buried in tombs of worshippers of (Ael. Aristides), i. 132 n.
3;
Simon Magus may have borrowed from religion of, i. 198;
Phrygian deities identified with, ii. 31;
appears as Zeus on Mithraic monument, ii. 238 n. 2;
splendour of worship of, contrasted with that of Mithras, ii. 269
Sargon, King of Akkad, astrological tablets going back to reign of, i.
113, 114
Sarmizegetusa, Mithraic monument at, ii. 264
Sarrebourg, Mithraic monument at, ii. 264
Satan, cosmocrator or world-ruler to Essene initiates (Kohler), i. 153
n. 4;
Marcion called the first-born of, ii. 10;
maker of the body in Gnosticism, ii. 54 n. 2;
enemy of world-creating angels and god of Jews (Saturninus), ii.
89;
cosmocrator in system of Valentinus, ii. 108;
active agent of matter in that of Marcion, ii. 210;
composite form of, in that of Manes, ii. 291;
antagonist of Manichaean First Man, ii. 293;
imprisonment of Manichaean, after Ecpyrosis, ii. 297;
called Hummâma by later Manichaeans, ibid.;
and Great Archon, ii. 298;
and Sindîd, ii. 304.
See Sammael
Saturn, the planet, presides over category of terrestrial things, i. 116;
soul of dead reincarnated when S. in certain position (Texts of
Saviour), i. 118 n. 1;
one of seven heavens in Ophite system, ii. 48;
connection in Diagram between S. and demon Michael, ii. 75;
set over 360 rulers of wicked powers (Texts of Saviour), ii. 182;
in Mithraism soul descends through sphere of, ii. 256;
lead associated with, ii. 257 n. 4;
in same, lowest initiate’s soul will return to sphere of, ii. 265
Saturninus or Saturnilus, the heresiarch, a native of Antioch, ii. 9;
his Docetism, ii. 17;
confusion as to name of, ii. 20 n. 1;
a follower of Simon Magus and predecessor of Basilides and the
Nicolaitans (Epiphanius), ii. 25 n. 5;
makes god of Jews one of the seven world-creating angels
(Irenaeus), ii. 47 n. 3;
denounces marriage and procreation as work of Satan, ii. 89;
Valentinus later than (Epiphanius), ii. 93 n. 3
Saulasau, mystic name of secondary world used by Ophites, ii. 94 n.
3
Saviour, The Texts of the, time of reincarnation dependent on
planetary motions, i. 118 n. 1; ii. 185 n. 2;
affinity of male and female soul explained, i. 195;
sexes united at the length, i. 196 n. 2;
rebellion of half the Twelve Aeons in, ii. 48 n. 4, 152 n. 1;
body of man made by evil daemons, ii. 54 n. 2;
place of punishment of wicked souls above the earth, ii. 69, 182 n.
1;
planet Jupiter ruler of the Five Planets, ii. 73 n. 1;
the angel Zarazaz called by name of demon Maskelli, ii. 75 n. 1,
148 n. 3;
the Serpent of Outer Darkness the Outer Ocean, ii. 78, 155 n. 4,
166 n. 2;
repeats Basilides “one in 1000 and 2 in 10,000,” ii. 92 n. 3, 172;
many members of the Ineffable One, but one body, ii. 145 n. 2;
Jeû the First Man overseer of the Light and Legate of First
Precept, ii. 147 n. 5;
the Books of Jeû written by Enoch in Paradise, ibid.;
Melchizidek Great Receiver of the Light, ii. 148 n. 2, 154 n. 1;
Great Sabaoth the Good and Gate of Life, ii. 149 n. 2;
Great Iao the Good, leader of Middle, ii. 149 n. 3;
Virgin of Light has seven virgins for assistants, ii. 150;
Barbelo called βδελλη in, ii. 151 n. 4;
the Kingdom of Adamas opposite the place of the Virgin of Light, ii.
152 n. 1;
Ialdabaoth in, one of the torturers in hell, ii. 155 n. 3;
says Baptisms and Chrism lead soul into Place of Light, ii. 167 n.
1;
renunciation of the world leads to Mysteries of the Light, ii. 167 n.
2;
thaumaturgic Eucharist of, ii. 172 n. 3, 192;
sacraments called Mysteries of Light, etc., ii. 173 n. 1;
the MS. of, described, ii. 180;
cannot be Valentinian, ii. 180 n. 3;
gives prayer of Jesus in unknown tongue, ibid.;
 puts souls of Patriarchs in Place of Jabraoth, ii. 182 n. 2;
extracts from other documents probably mixed with, ii. 182 n. 3,
183 n. 2;
threefold division of soul into Power, Moira and Counterfeit of the
Spirit, ii. 184;
no division of mankind into pneumatic, psychics and hylics in, ibid.;
magic recommended for conversion of heathen, ii. 185;
Pistis Sophia mentioned in, as daughter of Barbelo, ii. 186;
Orphics’ cups of oblivion and memory reappear in, ibid.;
unknown words of prayer of Jesus in, like those of Marcus’
baptismal formula, ii. 189;
sacraments of Bruce Papyrus resemble those of, ii. 193;
degradation of belief in, ii. 194;
returns to native Egyptian ideas, ii. 195-198;
fear of hell sanction of belief in, ii. 198;
quoted, i. 118 n. 1, 195 n. 1, 196 n. 2; ii. 54 n. 2, 75 n. 1, 78 nn. 4,
5, 92 n. 3, 145 n. 2, 147 n. 5, 148 nn. 1, 3, 149 n. 2, 150 nn. 2,
3, 5, 152 n. 1, 154 n. 1, 155 nn. 3, 4, 166 n. 2, 167 nn. 1, 2, 172
nn. 3, 4, 173 n. 1, 180 nn. 1-4, 182 nn. 1-3, 183 nn. 1-3, 184 n.
4, 185 nn. 1, 2, 186, 187, 198, 199
Saviours, the Twelve, furnish spotless souls for the Twelve Apostles
(Pistis Sophia), ii. 136, 147
Saviours, the Twin, “the boy of a boy” (Pistis Sophia), ii. 142, 171;
reappear in Texts of Saviour and Bruce Papyrus, ii. 193;
functions of, never alluded to, ii. 355 n. 2
Sayce, Prof. A. H., his translation of omen or astrological tablets
from Nineveh, i. 114
Sches-Hor, the, royal tribe of earliest invaders of Egypt, i. 36
Schmidt, Dr Carl, his text and translation of Pistis Sophia and Bruce
Papyrus, ii. 13 n. 2, 190
Schmiedel, Dr P. W., revives Tübingen theory that Simon Magus is
St Paul, i. 179 n. 3;
his mistake about Menander, i. 199 n. 7;
on community of goods, ii. 2 n. 3
Schwartze, Maurice G., transcriber and translator of Pistis Sophia, ii.
18, 134
Scythia, in story of Manes probably means Turkestan, ii. 285;
Addas disciple of Manes missionary to, ii. 352
Scythianus, father of Manes in Christian tradition, ii. 285;
identified with Patecius or Fatak (Kessler), ii. 285 n. 2;
may represent non-Aryan Medes, ii. 286
Sebaste, name of Samaria when rebuilt by Herod, i. 177
Secrecy, of Mysteries of Eleusis very strict, i. 41;
as to burial of Dionysos at Delphi, i. 47;
as to names of God and Goddess of Eleusis (Foucart), i. 47 n. 1;
of initiation into Mysteries of Isis, i. 62;
of Alexandrian doctrine that Osiris god of dead, i. 64 n. 3;
observed as to contents of chest carried in procession of Isis, i. 73;
reason for, as to Mysteries of Eleusis, their foreign origin (Foucart),
i. 130 n. 1;
or jealousy, i. 139 n. 2;
of tenets of Hellenizing Jews, i. 175 n. 2;
as to Dying God not observed by Cretans, ii. 16:
of Gnostics as to their opinions, ii. 18;
of Basilides’ followers, ii. 92, 189;
of Manichaeans, ii. 356
Secunderabad, preserves name of Alexander, i. 5
Secundus, the Valentinian, a leader of the Italic School, ii. 119;
imagines “a right and left tetrad, i.e. light and darkness”
(Hippolytus), ii. 147 n. 4
Seistan, part of Persian Empire, i. 1;
Alexander when in, said to receive grapes from Greece, i. 4 n. 1
Seker or Socharis, the god, a very ancient deity in Egypt, i. 32;
dreary life in next world of his worshippers, ii. 195
Seleucus I Nicator, grants privileges of citizenship to Jews in all cities
of his Empire, ii. 28;
affection of Persians for, ii. 224
Seleucus II Callinicus, defeated by Parthians under Arsaces, ii. 224
Semele, mother of Dionysos on his second or third incarnation, i. 40
n. 4, 42, 145;
in Alexandrian religion Dionysos called the fruit of the vine S.., i.
64 n. 3;
Dionysos son of S., Zagreus re-born, i. 125
Seneca, last speech of, ii. 87
Sepher Jetzirah and Sepher Zohar, books of VIth or VIIth century A.D.,
ii. 35.
See Cabala
Septuagint, the, familiarizes Jews with Old Testament, i. 157;
belongs to Western Diaspora, ii. 53 n. 2.
See Peshitto
Serapeum, the, Egyptian, at Memphis separated from Greek, i. 51;
Athenian, facing the Acropolis, i. 52;
oracle of Serapis at Alexandrian, i. 55;
represented on Herculaneum fresco (von Bissing), i. 68 n. 1;
Bryaxis’ statue in, i. 78 n. 2;
recluse in S. of Memphis, i. 79, 80;
destruction of Alexandrian, i. 83-85
Serapis. See Sarapis
Serpent, Dionysos begotten by Zeus in form of, i. 42;
live, used in Sabazian rites, i. 138;
in Orphic poems represents earth, i. 145 n. 2;
Ophites = worshippers of, ii. 26 n. 4;
“Bull father of serpent,” etc., ii. 39;
external Ocean figured as, ii. 49;
in Asia Minor emblem of goddess’ husband, ii. 49. n. 3;
emblem of Dionysos and soul of world, ii. 50, 55;
called “Michael and Sammael” (Ophites), ii. 52;
taught to coil round Eucharistic bread (Ophites), ii. 61;
called Leviathan in Diagram, ii. 70, 77;
Christian mob kill Ophite, ii. 77;
drops out of Ophite teaching, ii. 78;
 enemy of sun-god in Egypt, ibid.;
“serpent and dove,” ii. 135 n. 3;
death figured as seven-headed, ii. 156 n. 3;
Outer Darkness s. with tail in mouth, ii. 183;
part of, in Mithraic Tauroctony, ii. 245;
represents earth on Mithraic monuments, ii. 247, 250;
“the World-ruler, the Great S.” in Magic Papyrus, ii. 256.
See Tarentum
Set, the god, murderer of Osiris, i. 33;
defeated by Horus, i. 34;
his wife Nephthys comes over to Osiris, i. 35;
Perabsen returns to worship of, i. 36;
aided in war by Ethiopians, i. 37;
the “Osiris whom S. murdered” in Magic Papyrus, i. 92 n. 2;
Typhon Greek equivalent of (Plutarch), i. 105;
magician threatens to tear S. limb from limb, i. 125 n. 3;
like Osiris, a great power or daemon (Plutarch), ii. 16;
sect of Sethiani possibly named after him, ii. 74 n. 4
Seth, Ophites accept Genesis’ account of, ii. 52;
of Sethiani may be Sitheus of Bruce Papyrus, ii. 76 n. 4;
Manichaean or Mandaite story of, ii. 304
Seth, The Paraphrase of, Apocrypha used by Sethiani, i. 175; ii. 53
n. 3;
and by Ophites, ii. 79
Sethiani, the, sect derived from Orphics (Hippolytus), i. 175;
Simonians and they, only Gnostic sects not admitting Jesus’
divinity, ii. 15 n. 1;
their connection with Ophites, ii. 27, 76;
Ialdabaoth appears in system of (Theodoret), ii. 46 n. 3;
a Jewish but apparently non-Christian sect, ii. 53, 76.
See Linus
Severus, Caius Julius, Hadrian’s general, lays waste Palestine, i.
170
Severus, the Emperor Septimius, imitation of Alexander temp., i. 14
n. 1
Shamash, the god, sun-god of Chaldaeans identified with Mithras, ii.
241
Shâpûr. See Sapor
Shapurakan, the, of Manes quoted, ii. 307
Shem, identified by Moses of Chorene with Zervan, i. lx
Sheol, dreariness of Jewish, i. 58, 150;
Gentiles to be swallowed up by (Enoch), i. 161
Sheshonq or Shishak, King of Egypt, suzerain of Solomon, i. 31
Shilluks, the, Nilotic tribe who worship secondary god, but not
Supreme Being, ii. 39 n. 5
Shimnu, Buddhist Devil appearing in Khuastuanift, ii. 335 n. 1
Shishak. See Sheshonq
Sibyl, the, announces decline of worship of Serapis and Isis, i. 86;
Jewish forgeries in name of, i. 173
Sicarii or Zealots, escape before Fall of Temple to Africa and commit
outrages, ii. 5 n. 3
Sicilians, the, call Isis “Stygian Proserpine,” i. 56
Sicily, scene of Rape of Proserpine (scholiast on Hesiod), i. 40;
Isis-worship brought into, by Hiero II, i. 53;
Orphic gold plates found in, i. 131;
Demeter and Persephone tutelary deities of, i. 135
Sidon, Mithraic monuments at, ii. 261 nn. 1, 4
Sige or Silence, female consort of Bythos in Valentinian system, ii.
96, 98;
called also Charis or Grace, ii. 96 n. 5
Simon of Cyrene, crucified instead of Jesus (Basilides), ii. 17
Simon Magus, accused of magic by Hippolytus, i. 110;
thinks souls attracted into bodies by sexual desire, i. 153 n. 3;