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The Common Law in Colonial AmericaVolume IV: Law and the Constitution on the Eve of Independence, 1735-1776$

William E. Nelson

Print publication date: 2018

Print ISBN-13: 9780190850487

Published to Oxford Scholarship Online: May 2018

DOI: 10.1093/oso/9780190850487.001.0001

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Terminating the Ties of Empire

Terminating the Ties of Empire

(p.129) 8 Terminating the Ties of Empire
The Common Law in Colonial America

William E. Nelson

Oxford University Press

Abstract and Keywords

This chapter discusses a series of armed rebellions involving the Paxton Boys in Pennsylvania, the Regulators in North and South Carolina, and rent strikers in New York that foreshadowed the War for Independence. It also discusses a series of cases and controversies occurring between 1766 and 1776, a period of truce, in which lawyers, often representing the economic interests of their clients, made constitutional arguments in support of established localist and common law practices. The chapter ends with an analysis of legal breakdowns in the imperial system occurring between the time of the Boston Tea Party and the Declaration of Independence.

Keywords:   Forsey v. Cunningham, Freebody v. Benton, Lord Dunmore, rebellion, Massachusetts Government Act

For the next decade, both sides maintained their constitutional positions, but made no determined efforts to enforce them. Americans maintained their independence through local institutions on the ground that periodically nullified parliamentary and other law. But they sought to remain British subjects within the structure of the British Empire and did not claim formal independence. Parliament maintained its claim of power to enact law through legislation, but made no decisive efforts to enforce its law coercively. Numerous skirmishes between imperial and other central authorities, on the one hand, and local interests, on the other, did occur between 1766 and 1773 and continued the process that the Stamp Act had begun of undermining the rule of law, existing axioms of authority, and thus the foundations of imperial rule. But until Parliament reacted recklessly to the dumping of tea in Boston Harbor, a truce remained in place.

The Period of Truce

Others have written about Parliament’s efforts to tax the American colonies between 1766 and 1773 and about American resistance to those efforts,1 and this is not the place to repeat what they have said. The goal here is narrower—to focus on a series of discrete, disconnected happenings in the courts during the late 1760s and early 1770s, many of which political historians have largely ignored. But in the interest of comprehensiveness, we must first take some note of a few events occurring before 1765 or occurring outside the courts—events that produced reverberations in the realm of law.

Riots and Rebellions

Four colonies—Pennsylvania, New York, and North and South Carolina—suffered major civil strife during the 1760s and early 1770s. The strife in (p.130) Pennsylvania occurred first, even before the passage of the Stamp Act. It ended in a fashion that illustrated how the British imperial system at times could still function effectively.


The end of the Seven Years’ War did not bring peace with all Native American nations. In particular, the Ottawas under the leadership of their chief, Pontiac, continued to attack frontier settlements. Even after the attacks had subsided, frontiersmen remained angry and were searching for retribution. One mob of some fifty frontiersmen living in the vicinity of the Pennsylvania town of Paxton began to get that revenge on December 14, 1763, when they murdered six unarmed Christian Indians. Two weeks later, an even larger mob killed fourteen additional peaceful Indians.

Next the mob, which has come to be known as the Paxton Boys, headed for Philadelphia, seeking to kill other Native Americans along the way as well as whites who were protecting them. The mob began to gain political support from other Scotch-Irish Presbyterian and German Protestant frontiersmen who were angry at the malapportionment of Pennsylvania’s Quaker-dominated legislature and its persistent refusal to appropriate money for frontier defense. As the Paxton Boys moved east and eventually reached Germantown, only a few miles outside Philadelphia, the mob grew to some 250 men. Civil strife threatened.

Governor John Penn responded effectively. Seeking to form an alliance with Presbyterian and German interests against the Quaker majority in the legislature that was obstructing his administration, he opted for compromise. He sent a delegation from Philadelphia to meet with the Paxton Boys, offering them immunity from prosecution and an opportunity for their leaders to present their demands to the legislature. The mob accepted his offer, broke up, and went home.2

Several facts about the Paxton riot are noteworthy. The first is that the pursuit of ordinary politics induced rival leaders to compromise and to avoid violent conflict. The second is that compromise did not resolve core political issues: Philadelphia-area Quakers retained the dominance in the malapportioned Pennsylvania legislature to which their numbers did not entitle them and continued to deny frontier counties the level of appropriations for defense that the frontiersmen wanted. Meanwhile, the Presbyterian-German alliance created by Penn persisted in its demands for legislative reapportionment and frontier defense—demands that were finally met with the overthrow of Quaker rule in the American Revolution. Compromise, in short, brought only temporary peace by pushing resolution of real conflict into the future. The third fact is that the law was not enforced, perhaps because a growing localist structure of power in (p.131) Pennsylvania precluded enforcement. Governor Penn bought peace by caving in to the Paxton Boys and by not prosecuting them for the murder and mayhem they had committed.

South Carolina

Another colony where central authorities caved into local forces of rebellion was South Carolina. Trouble began in that colony in 1766, when a crime wave, with thefts, assaults, and even kidnappings of young women, broke out in newly settled frontier regions. The next summer witnessed a series of brutal robberies. Recall that all of South Carolina’s courts and law enforcement officials were located in Charleston, the capital, and they were nearly powerless in the outlying areas. They were able to capture only a few criminals, and even those who were apprehended rarely received serious punishment. Five men convicted of burglary or horse stealing in the March 1767 term of the Court of General Sessions, for example, were sentenced to death, but a new governor, wishing to begin his term of office with a show of leniency, pardoned them. Only one backcountry criminal was punished at that term, with a mere whipping for petty larceny.3

As a result, local people took the law into their own hands and over several months in the fall of 1767 organized some one thousand men into a quasi militia to pursue and punish criminals. They called themselves Regulators. When the governor issued a proclamation ordering them to disperse, they ignored it. Instead, they sent a list of demands to the provincial assembly, the main one being an entreaty for the establishment of county courts in the regions beyond Charleston and the selection of sheriffs for each county to replace the colony-wide provost marshal. They also sought the enactment of laws for the punishment of idleness and vice and the reform of legal procedures to reduce the expense and complexity of litigation. Meanwhile, they ignored the authority of the courts sitting in Charleston and obstructed service of their process. For three years, the Regulators defied the authority of the Charleston government.4

In response, the government in Charleston tried to accommodate the Regulators. In 1768, it adopted legislation establishing circuit courts for the colony, as well as sheriffs for every county, thereby fulfilling the Regulators’ main demand. But at the end of the year, the Privy Council disallowed the legislation.5

Not until the summer of 1769 did the legislature enact and the governor sign a new circuit court act. It established six districts outside Charleston, provided for gubernatorial appointment of sheriffs in Charleston and each of those districts, and stipulated that the justices of Common Pleas and General Sessions would hold a joint session of those courts in each of the six districts twice each year. It became the practice for two justices to attend each circuit session. The (p.132) king assented to the act in November 1769. Local sheriffs were appointed in 1772, and the circuit courts held their first sessions in the fall of that year.6 In the end South Carolina, like Pennsylvania, did put down a rebellion, but only by recognizing the realities of local power and meeting the demands of the rebels.

New York

New York authorities were even less successful than those of Pennsylvania and South Carolina in dealing with the lawlessness and rebellion they confronted. The “impression one gains from the records of criminal courts for the period after the French and Indian War,” to quote the only slightly exaggerated language of Julius Goebel, “is one of a general and nearly continuous state of riot throughout the province.” One Albany sheriff, for instance, reported that when he tried to make an arrest, the defendant “seized a pistol, swore he would blow my brains out, and so kept me from further prosecuting the arrest, uttering all the time the most violent oaths and other abusive language against me. It is impossible for me to execute my office.”7

Another Albany sheriff, Harmanus Schuyler, was equally unsuccessful when he tried to arrest two members of the Lydius family, father and son, for intrusion on Crown lands. Attorney General John Tabor Kempe directed Schuyler on at least five occasions to arrest the Lydiuses and finally prosecuted Schuyler for failing to obey. Schuyler informed the court that “he did not think it safe, the said Lydius and son being very resolute fellows,” but the court refused to accept his excuse and fined him. Subsequently, the Lydiuses assaulted Schuyler when he tried to serve process in another matter, for which assault they were prosecuted. But even that case never came to a resolution, since Schuyler, who was sent to arrest them, did not succeed in doing so.8

Indeed, throughout the colony, prosecutors found themselves confronting witnesses who would not testify before grand juries or for the prosecution at trial, large numbers of jurors who failed to appear in court, and trials requiring cancellation on account of a sheriff’s inability to summon a jury. There was even a case in 1772 in which a man was prosecuted for “usurping the office of mayor of the borough town of West Chester.”9

These cases were minor nuisances compared to a situation in a remote region northeast of Albany, in what is now Vermont, where “a number of people . . . live[d] in open defiance of authority—pretending to appoint officers and to erect courts among themselves—executing in the most illegal and cruel manner, the high power of trying, condemning and punishing their fellow subjects.” Lawlessness was equally prevalent on the Mohawk frontier, although sparseness of population meant that lawbreakers were fewer in number and less well organized.10

(p.133) Meanwhile, the chaos resulting from the Stamp Act crisis led directly to new outbreaks of violence in the Taconic region. Before the passage of the act, a Native American nation had appointed one Samuel Monrow as guardian of its land rights in the Taconic, and he had formed an alliance with a group of squatters, one of whose leaders was his son, Samuel Monrow, Jr. In the course of litigation, the Governor and Council had ordered the arrest of Samuel Monrow, Sr., who in fact was apprehended and placed in a New York City jail in March 1765. In November 1765, however, as the Stamp Act crisis was leading toward the breakdown of law and order in New York City, the squatters called a meeting of tenants in eastern Dutchess County to demand that the patroon landlords give them long-term leases at reasonable rents. They intimidated loyal tenants, warned everyone not to pay rents, and by the spring of 1766, despite the efforts of local courts, were in control of eastern Dutchess County. Meanwhile, in Westchester County, immediately south of Dutchess, after a patroon landlord had used the judiciary to evict several tenants, those tenants organized a group of friends who violently put them back in possession of their farms; one of the tenants and two other rioters were promptly arrested and joined Samuel Morrow, Sr., in jail in New York City.11

Now the Dutchess and Westchester rebels, who soon numbered five hundred men, joined together to march on New York City to free the prisoners and, in case of opposition, “kick their arses as long as we think fit.” Governor Henry Moore ordered British regulars and the city militia to stop the marchers, who, upon entering the city and observing the military, fled without a shot being fired. The Westchester rebellion immediately collapsed, but the Dutchess rebellion did not. Governor Moore then ordered British regulars to put down the Dutchess uprising; they captured some sixty rebels, but at the cost of several casualties and with most of the rebels fleeing into Connecticut. Meanwhile, violence had broken out further north in the vicinity of the 1750s conflict. When a sheriff’s posse went out to suppress it, a pitched battle occurred with casualties on both sides, and the sheriff’s posse dissolved and withdrew in defeat. Governor Moore had no choice but to send about a hundred regulars to pursue the rebels; the rebels, however, refused to fight but simply melted into the woods and fled to Massachusetts. Although the army captured a few rebels and restored peace, the rebels simply returned and regained possession of their farms and control of the Taconic region once the army, as it ultimately had to do, withdrew.12

In short, law and order broke down in much of the New York colony in the aftermath of the Stamp Act crisis, and British officials in New York City, without a bureaucracy and a substantial military force, could do little about it. In fact, they should have learned a lesson: namely, that their army could march around the countryside, devastate and ravage it, and capture a few rebels, but that the army could not govern, at least not without an unacceptable, long-term expenditure of (p.134) resources. When the army withdrew, the rebels would return and reinstitute the only form of government that could work in colonial America—local government. It would be a lesson about the realities of American law and constitutionalism that North Carolina rebels would teach again. Although some in Britain learned the lesson, the leaders of the government did not because, as one historian has observed, “America was too important to Britain” for Britain’s leaders to conceive that they could not keep it under control.13

North Carolina

The most troublesome rebellion occurred in North Carolina. That colony, unlike South Carolina, provided courts for its western frontier settlements, but those courts proved no more able to enforce the law than were the courts of New York or the single central court of Charleston, South Carolina.

The same legislation of 1754 that had established courts in the east established identical courts in the west—a Supreme Court that would sit in two different locations, Hillsborough and Salisbury, and a series of county courts. In the Supreme Court, far fewer cases were filed in the west than in the east, and the cases that were filed were routine in nature and raised few legal issues. Only two civil cases in Hillsborough, for example, raised legal issues: in the first, a judgment was arrested and a jury verdict set aside “for want of a proper declaration,” whereas in the second, an appeal was dismissed when the court upheld a demurrer to the declaration. In one criminal case, an indictment was quashed “by reason of the irregularity of the [grand jury’s] return,” whereas in a murder prosecution there was a motion in arrest of judgment following a jury verdict of guilty only of manslaughter.14

In Salisbury, the only significant issue concerned the judiciary’s power to control juries. In one criminal case, the court dismissed a prosecution after concluding that the evidence was insufficient to support a guilty verdict, whereas in a civil case, the court, after receiving a verdict, reserved judgment whether particular testimony was properly admitted in evidence and whether it was sufficient as a matter of law to support the verdict. In a third case, a jury was willing to leave an important issue of law to the court when it returned a verdict that the defendant was “guilty of saying the words in the indictment charged against him” but left it to the court to determine whether those words constituted criminal defamation.15

Filings in western county courts made up to some degree for the paucity of filings in the Supreme Court. There were fairly numerous civil actions seeking the recovery of small sums of money brought in assumpsit, case, debt, defamation, scire facias, trespass, and trover.16 In one unusual case, a woman sued her husband and obtained a bond for good behavior as a result.17 Defendants in these (p.135) actions pleaded various forms of the general issue with some sophistication: in debt, for instance, defendants interposed pleas of nil debit, non est factum, not guilty of violating a statute, and no such judgment.18 Occasionally, there were special pleas in western county courts, such as pleas of payment, tender, and the statute of limitations.19

The county courts also assumed jurisdiction over criminal prosecutions for offenses such as adultery, assault, contempt in open court, extortion, fornication (committed by men as well as women), petit larceny, profanity, trespass, killing a hog, not appearing for jury duty, passing counterfeit bills, and selling liquor without a license, as well as jurisdiction to commit accused prisoners to the Supreme Court for trial.20 Sitting without a jury, the county courts also adjudicated vagrancy cases, in one of which a woman was discharged on condition that she “immediately depart this county,” and criminal charges against slaves, including major charges such as murder, where they imposed whippings even when they found slaves not guilty.21

Lawyers typically appeared in these cases, and there were occasional motions on unstated grounds to quash proceedings, to set aside judgments and grant new trials, and to allow appeals.22 But neither the sophistication of the local bar nor that of the judges should be overestimated. Thus, writs were used quite imprecisely—one suit, for instance, was brought for “Case Debt.” And the courts appeared willing to tolerate a good deal of irregulatity: in one suit, a verdict rendered by jurors who were not all freeholders and who had not all attended the trial was allowed to stand when a motion to set it aside was withdrawn, whereas in another case there is no record whether the verdict of a jury that acted like a court of equity in granting rescission of a contract was allowed to stand after the defendant had moved in arrest. On the other hand, there is one instance of attentiveness to law, where a jury returned a verdict “for the plaintiff if the law be for him,” but “if the law be against the plaintiff,” it found “the defendant not guilty.”23

Whatever the level of legal sophistication, two facts are clear. First, the records leave no doubt that western county courts heard only minor cases—civil suits in which monetary recoveries were small and title to land was not at issue and criminal cases that did not involve a penalty of life or limb. Second, the county courts were hostile to outsiders, as evidenced by a court rule that “if any attorney” brought “suit . . . in behalf of one out of the county such attorney shall be liable to pay the fees” in the event of “a nonsuit . . . [,] verdict against the plaintiff,” or default in prosecution. Perhaps, they also displayed favoritism toward residents, as in the case of one “Baptist” who refused to give evidence “on pretense of tenderness of conscience.”24 In any event, the western county courts did not provide forums useful to nonresidents seeking to establish their title to land or to collect large debts or to Crown officials seeking any substantial legal relief.

(p.136) As a result, although local communities may have effectively governed themselves, the provincial government possessed limited capacity to enforce law meaningfully in the west. The government, which consisted almost entirely of courts, was able to enforce law that served the people of local communities. But it could not coerce those people for the benefit of outsiders.

Trouble began as early as 1759, little more than a decade after significant settlement had occurred in the Piedmont and only five years after the establishment of the Supreme Courts. Several vigilantes from Granville County seized a land agent who had been taking fees that the viligantes claimed were illegal. After forcing him to post an alleged bond requiring a future appearance in court, the vigilantes dispersed, but, when several of them were arrested and jailed, friends broke into the jail and released them. No further prosecutions transpired.25

The next riot occurred in 1765, when a group of squatters in disguise attacked and beat four surveyors who, on behalf of an absentee landowner, were mapping out the land on which the squatters had settled. Governor William Tryon issued a proclamation calling for the identification and prosecution of the squatters, but nothing happened. In the same year, a schoolteacher was sued for a small debt and responded by writing “An Address to the People of Granville County,” in which he pilloried lawyers, court clerks, and sheriffs and accused them of taking unlawful fees that increased the charges of litigation. His pamphlet led to a petition to the General Assembly, but that petition was ignored. The next year, the January term of the Rowan County Court for unstated reasons had to be postponed: all but two theft prosecutions were continued to the April term.26

Enter the North Carolina Regulators. In 1767 people in the Hillsborough vicinity had sought to create formal machinery by which protests could be conveyed to the provincial government, but officials had blocked their efforts. Then, at the beginning of April 1768 they founded the Regulator Association with the goal of “regulating” their own affairs. A few days later a Regulator refused to pay taxes, to which the sheriff responded by seizing his horse and preparing to sell it. Fellow Regulators promptly tied up the sheriff, rescued the horse, and threatened a prominent local judge. The judge called up the local militia, but when few responded to his call, he sought help from Governor Tryon.27

In July, Tryon marched into Hillsborough at the head of a militia force from three counties, but the Regulators made it plain they still intended not to pay taxes. By September the Regulators had assembled a force of some eight hundred men to disrupt the forthcoming Hillsborough sitting of the Supreme Court, but Tryon had twice that number. Ultimately the Regulators simply went home, and the court met.28

Agitation continued for the next two years, but without violence. Then in September 1770, the Regulators burst into the Hillsborough Supreme Court session, seized and beat a lawyer, dragged the assistant attorney general and one (p.137) of the judges into the street, and demolished the judge’s house. Other leading citizens, including the presiding judge, fled town.29

The legislature responded by enacting a statute permitting the attorney general to obtain indictments against and prosecute rioters in any Supreme Court in the colony or in a specially convened court.30 This legislation meant that, if Regulators could be captured, they could not count on protection from local juries or on being rescued by local friends—precisely the sort of allegedly unconstitutional deprivation of the right to trial by jury that would worry Antifederalists a mere two decades later.

Next Tryon attempted to catch the Regulators. In the spring of 1771, he gathered an army to bring the west to its knees, and on May 16, 1771, Tryon’s force of thirteen hundred militiamen defeated twenty-five hundred Regulators in the Battle of the Alamance. He pardoned all but a handful of leaders, six of whom were executed, and spent the next two months chasing after the leaders, seizing their property, and destroying much other property along his path.31

Although Tryon won a battle, he did not restore the rule of law. According to extant colonial court records, the Salisbury Supreme Court never met after 1770 and the Hillsborough Court met only briefly in March and September 1772. Although county courts throughout the west continued to meet, they had, as we have seen, little law enforcement capacity. Local people allowed them to function only because they offered important services to local interests: they supervised the building and maintenance of infrastructure, such as roads and mills, and provided a mechanism through which local people could make a permanent record of important transactions, such as land sales, slave sales, contracts, guardianships, apprenticeships, administrations of estates, and the like, including records that individuals’ ears had been bitten off in fights and not cut off pursuant to any court judgment.32

But the county courts proved unable to perform important governmental functions. In Tryon County in 1770, for example, the court postponed receiving a final report from the sheriff on the annual tax collection because over one-fifth of taxpayers had “absconded out of said County or [were] insolvent.” In Rowan in 1770, the sheriff reported he collected almost nothing “[o]wing to a refractory disposition of a set of people calling themselves Regulators refusing to pay any taxes”; their refusal, in turn, produced a race to the bottom in which “many well disposed people neglect[ed] to discharge their public dues.” In 1769, the sheriff had reported for the tax year 1765 that, out of some 2,800 taxpayers, 292 were “listed twice” or had run away, whereas another 838 were “insolvents, or insurgents, mob, or such who refuse to pay their taxes,” while for the tax year 1766, there were 1,833 “delinquents, insolvents, insurgents, mob, or such who generally refuse to pay their taxes.” Indeed, conditions were so bad in Rowan County by 1769 that the man chosen as sheriff could not obtain a performance (p.138) bond, not because “his friends . . . doubted . . . his integrity or honesty,” but because of the “confused state & present disturbances together with the scarcity of circulating money.” Two years later, Regulators still were refusing to take the oath of allegiance in support of the colony’s government.33

In sum, Tryon’s victory at Alamance established no more than that an army with superior weapons, at least in a pitched battle, could capture and kill some of its enemies. But when the bulk of the enemies simply disappeared into the countryside, the army could not govern them. At most, it could wreak havoc on the countryside while the people of the countryside, to the extent they wanted government, continued to govern themselves. In short, the concentration of power in local institutions mattered: although we can never know for sure what economic, political, demographic, or ideological reasons induced people in western North Carolina to rebel against their eastern rulers, we can know for sure that the localist reality of the North Carolina legal system mattered. Like parts of upstate New York, western North Carolina in many respects already constituted an entity independent of the British Empire when the American Revolution broke out in 1775–76.

The Insignificance of the Riots and Rebellions

Nonetheless, although the riots and rebellions in Pennsylvania, New York, and the Carolinas should have warned authorities in London of the futility of sending armies to conquer and govern America, they did not bring the British Empire to its knees. The reason is that the riots and rebellions did not constitute direct challenges to parliamentary authority. Instead, they were either conflicts between local elites and underclasses or conflicts between competing interest groups: in Pennsylvania, for example, between Quakers, on the one hand, and Presbyterians and German pietists, on the other; in northeastern New York (i.e., Vermont) and the Taconic, between patroon landholders with titles from New York and immigrant farmers imbued with the freehold mentality of New England; and in North Carolina, between Anglicans in the east and evangelical Protestants on the frontier in the west. Parliament was indifferent to the outcome of such conflicts and therefore made no effort to intervene in them. Accordingly, although the riots and rebellions undermined the rule of law and historic axioms of authority and thus weakened the foundations of imperial rule, they did not produce an immediate collapse of the structure of empire.

Cases and Controversies

The repeal of the Stamp Act did not bring challenges to authority to an end. On the contrary, the structure of empire continued to fray. Perhaps the breakdown (p.139) of authority had nothing to do with the Stamp Act. It might, for example, have been a legacy of the Great Awakening—of its schisms and even more of its idea of the capacity of all individuals to have equal access to God, knowledge, and truth. Perhaps it was a legacy of the maturation of American society. Americans of the 1760s no longer were totally dependent on British succor; both the colonies as entities and the individuals who lived there were capable of surviving in the world on their own. They did not have to obey. Perhaps it was these factors that made resistance to the Stamp Act possible. Nonetheless the success of that resistance intensified the breakdown of authority that continued to occur in the Stamp Act’s aftermath.

Whatever the reason, those in authority found it increasingly difficult to obtain obedience from their underlings. King v. Hurd, a 1771 case from Connecticut that had nothing to do with the Stamp Act or imperial power, is illustrative. The case arose when Governor Jonathan Trumbull proclaimed a day of fast and humiliation and the colony printed copies of the proclamation, which were to be distributed to ecclesiastical societies by county sheriffs, who in turn were to receive packages containing the copies from local postmen. Ebenezer Hurd was a postman charged with delivering such a package to the sheriff of Fairfield County, which he “wrongfully and designedly” neglected to do. Hurd’s intentional refusal to perform his assigned duty reflected the first breakdown of authority. The second occurred when, upon Hurd’s prosecution for his offense, a jury found him not guilty. Although no direct evidence exists, it appears from the language of Hurd’s indictment, from his prosecution in a high court, and from the jury’s nullification that Hurd’s failure to deliver his package involved more than mere laziness or negligence—perhaps some political or religious conflict between Governor Trumbull and the people of Fairfield County.34

Other examples of the breakdown of authority, along with the civility, deference, and trust that had accompanied it, come from South Carolina, where Chief Justice Shinner stubbornly persisted in his disagreements with his colleagues. In the summer of 1766, for instance, he proposed a new rule for swearing juries summoned on writs of inquiry—the procedure used to determine a plaintiff’s damages in assumpsit following a defendant’s default. But two associate justices sitting with him objected and insisted that established precedents be followed, with the result that the court ordered that juries “be sworn . . . in the usual manner, which was done accordingly.” Would associate justices a few years earlier have so repudiated a chief justice whom they respected by publicly outvoting him? In the end, their disrespect caused the governor in May 1767 to suspend the chief justice from office, and in November, when his removal apparently had been made final, the associate justices displayed their ultimate contempt for Shinner by ordering that his fees be paid over to them.35

(p.140) Even with Shinner gone, authority and subordination could not be restored fully. The Court of Common Pleas would no longer obey the bidding of imperial authorities automatically. Thus, when in 1767 a new customs collector tried to enforce customs regulations more strictly, he confronted mobs and an “avalanche” of suits by local merchants that forced him to leave the colony. His departure, in turn, led to a suit and judgment against his subordinate, which the subordinate was unable to pay. The subordinate received protection from the Court of Admiralty, but admiralty’s decision led only to a pamphlet war between a leading merchant and the admiralty judge, who ultimately lost his judicial post.36

Similarly, when the attorney general in 1769 applied for writs of assistance on behalf of royal customs officials, the South Carolina court, in a reversal of what had been done only eight years earlier even in Massachusetts, refused to issue them. It was, according to a contemporary treatise writer, “unusual for justices to grant general warrants to search all suspected places.” Instead, the court directed the attorney general “to inform the Custom House Officers . . . that whenever any matter occurred in the execution of their duty that made the aid of the judges necessary they would be ready on proper, special application to give them the fullest assistance.”37

The Supreme Courts of Pennsylvania and New York reached similar results. Although the Pennsylvania court had routinely enforced parliamentary customs legislation before the Stamp Act, its approach after the 1765 crisis was different. When the Crown in 1769 requested the issuance of “a general warrant of assistance” on behalf of “customshouse officers,” the judges, upon “considering the several acts of Parliament relating to this subject, . . . were unanimously of opinion that such a general warrant could not legally be granted, but that the custom house officers should apply for warrants of assistance from time to time as special occasions should call for them.” Meanwhile, in New York, the Supreme Court granted a general writ of assistance as late as 1768, but refused to do so thereafter.38

We will never know to what extent economic interests, on the one hand, or belief in the unconstitutionality of general warrants, on the other, motivated opposition to the issuance of such warrants. But we can know with certainty that the argument of James Otis that was rejected in 1761—that courts should refuse to enforce an act of Parliament that was inconsistent with the reason of the common law—had gained mainstream judicial acceptance by the end of the decade in cases involving the issuance of general writs of assistance.

Meanwhile, South Carolina judges became involved in yet another battle resulting from a vote in the lower house of the legislature granting a gift to John Wilkes in appreciation of his support for Englishmen’s rights. The vote produced several years of conflict between the lower house and the council, which was (p.141) determined to prevent delivery of the gift. In 1773, a protest against the council’s actions appeared in the South Carolina Gazette, to which the council responded by arresting its printer, Thomas Powell. Two local justices of the peace, who happened to be members of the lower house and perhaps remembered the Zenger case, promptly released Powell on habeas corpus.39

The cases just discussed had little impact on the constitutional debate between Parliament and the American colonies and were, in the main, only of local significance. One of the eighteenth century’s great constitutional cases, Forsey v. Cunningham,40 did, however, have more important intercolonial significance.

The case arose in New York after Waddell Cunningham, in the midst of an altercation with Thomas Forsey, chased him and, when Forsey defended himself, stabbed him in the chest with a sword he had concealed beneath his clothing. Forsey commenced a civil action against Cunningham in the Supreme Court for battery, and in October 1764 the jury returned a large verdict of £1,500 in the plaintiff’s favor. Cunningham determined to appeal to the Governor and Council, which sat without a jury, and ultimately, if necessary, to the Privy Council, which also sat without a jury. Cadwallader Colden, who was acting governor at the time, was eager to consider the appeal as a means of limiting the power of juries and thereby enhancing the power of the Crown.

The difficulty for Cunningham and Colden was that no error appeared on the face of the record. The proceedings below had been legally simple: Forsey had filed his writ and declaration, Cunningham had properly pleaded the general issue and moved for a struck jury, which motion had been granted, and the case had been submitted to the jury on the evidence, not reported in the record, that the parties had presented. Cunningham’s only objection was to the size of the verdict, but if he took his appeal by writ of error, that objection could not be raised. There was no error in the proceedings below.

Cunningham accordingly sought to proceed by filing an appeal rather than a writ of error. The distinction was that on a writ of error, where a general verdict had been given, the merits of a case did not appear in the record and thus could not be considered by the higher court; it could consider only whether an issue of law had been improperly decided below. On an appeal, in contrast, the entire cause was open to reconsideration, both on the evidence below and on such new evidence as the litigants might present. Colden conceded that under earlier New York practice no one had ever proceeded by this form of appeal from the Supreme Court to the Governor and Council, but he saw Cunningham’s case as a device to alter this preexisting practice and thereby enhance the Crown’s power to reexamine jury verdicts contrary to royal policies. Colden sought to allow an appeal on the technical argument that a clause in the instructions of the governor specifying the writ of error as the proper mode of appeal had been omitted from those instructions in 1753.41

(p.142) Relying on its precedents and on its understanding that, at common law in England, cases proceeded from lower to higher courts only by writ of error, the colony’s Supreme Court, which was staffed almost entirely by members of the New York bar and was thus somewhat accountable to it, denied Cunningham’s appeal. The council, on the advice of the judges and the attorney general, agreed and also denied the appeal, over Colden’s dissent. In 1765, Cunningham next sought leave from the Privy Council to appeal to it. The council denied leave, but at the same time it directed Colden to allow an appeal from the Supreme Court to the Court of Appeal, presumably the Governor and Council, in New York. Colden thereupon issued a writ of appeal to the Supreme Court. The court declined to obey the writ on the grounds that the attorney seeking to appeal had not been properly retained, that it had no power to assign counsel to proceed in a court over which it lacked jurisdiction, and that, in any event, it had received no proper writ directing it to send up the record. There matters rested until in November 1765 a new governor arrived with new instructions restoring the language omitted from the 1753 instructions and confining appeals to the Governor and Council to “cases of error only.” Colden’s effort to free New York’s appellate courts from the power of local juries accordingly failed.

Forsey v. Cunningham, with its potential for undermining jury power, “shook the province and had repercussions the whole length of the Atlantic seaboard.” The threat to the jury resulted in petitions to Parliament, and the preservation of jury power led to publication of a pamphlet, similar to Alexander’s Brief Narrative in the Zenger case, that circulated widely.42 And it left jurors with power to determine law as well as fact unless a trial judge, in the exercise of his unreviewable discretion, tried to use one of the procedural mechanisms at his command to stop them.

The result was that the radical dispersion of power that had existed in New York in the 1660s still persisted a century later. Law was not what the governor or even the Assembly by statute commanded; law was what local people, either jurors or trial judges beholden to local constituencies, or in the case of Supreme Court justices, to the bar, declared the law to be. New York’s peripheries remained ungovernable from the center. Even in Pennsylvania, where judges in the mid-eighteenth century were declaring that it was “a settled rule, that courts of law determine law; a jury facts. . . [,] upon which maxim every security depends in an English country,” the press was at the same time urging jurors to stand firm in protecting their claim of law-finding power and thus local self-rule.43

With such antiauthoritarianism in the air and the sinews of empire becoming frayed, British officials and their colonial opponents nonetheless worked hard to maintain civility, mutual deference, the tradition of compromise that accompanied them, and thus the empire itself. Forsey v. Cunningham provides an example. Cadwallader Colden, the acting governor, had come close to winning (p.143) his effort to strengthen imperial authority when the Privy Council directed the New York Supreme Court to allow an appeal to the Governor and Council. But authorities in the British ministry snatched victory from his hands when, in effect, they overruled the Privy Council and sent out a new governor with the old instructions to allow appeals in “cases of error only.” Perhaps those authorities were incompetent and did not understand how the old instructions weakened the Crown. But it seems more likely they were acting to preserve traditional legal rules promoting the accommodation and compromise by which the empire had successfully been governed for three-quarters of a century.

A Rhode Island case, Freebody v. Brenton, which addressed issues of currency depreciation and inflation over which Rhode Island and British authorities had been fighting for decades, provides another example. For some fifteen years going back to the late 1750s, the Rhode Island courts and the Privy Council had worked to decide the Freebody case in a manner that preserved mutual legal respect. As late as 1772, after the Rhode Island Superior Court had decided in 1769 to follow its own “constant invariable practice” and not enforce a Privy Council order, the Freebodys had accused the court of “direct disobedience,” complaining that “too many in this charter colony . . . think themselves under no obligation to pay any obedience to the authority of Great Britain.” They wanted the Privy Council to issue a peremptory order. English authorities met, however, with a lawyer representing Rhode Island, after which the council issued no order but merely requested the colony’s judges to explain their decision. In the words of Mary Bilder, the request for an explanation “preserved the Council’s authority while paying respect to the Rhode Island judiciary.” Old patterns of mutual forbearance, of giving everyone a full hearing, and ultimately of compromise persisted on the part of the Privy Council as late as 1772.44

Colonials likewise did not press too hard. Consider, for example, John Adams’s defense, along with Josiah Quincy, Jr., and Robert Auchmuty, of Captain Thomas Preston, who, it was alleged, had ordered his troops to fire the shots that had killed civilians in the Boston Massacre. Adams was closely tied to Massachusetts opposition leaders throughout the decade leading up to the Revolution, developed into an early fighter for independence, and ultimately became the second president of the United States. But he understood that the law on which the empire was based—the law that he still hoped could preserve the empire and avert independence—entitled Preston to a vigorous defense, and Adams gave Preston that defense. Preston was entitled to challenge peremptorily up to twenty talesmen on the jury panel selected by the towns of Suffolk County, and Adams participated in the challenge of nineteen of them—nineteen men who, if left on the jury, almost certainly would have found Preston guilty. Adams undoubtedly knew that the county sheriff, Stephen Greenleaf, a confirmed Loyalist, would go out on the street and replace those talesmen with (p.144) Loyalist jurors who would vote, as they did, to acquit Preston. It was not a matter of a jury giving Preston a fair hearing whether he had ordered the shooting; it was a matter of Preston taking advantage of a legal technicality to avoid punishment for what most people of Massachusetts deemed murder. But the law entitled Preston to that advantage, and as of 1770 John Adams still believed in law as the glue that could hold the empire together.45

Toward Independence

But imperial law broke down in December 1773, when a group of Bostonians in disguise dumped tea into Boston Harbor, and Parliament abandoned all restraint, made no effort to punish only the guilty, and, in the view of most Americans, punished all of America by passing the Intolerable Acts. The political and military path that led first to Lexington and Concord, next to Bunker Hill, and ultimately to the Declaration of Independence has been well trod by other historians,46 and I have nothing to add. It is possible, however, to focus on some legal developments that occurred along the path to independence—developments that political historians have tended to minimize but that reveal a great deal about the common-law, localist constitution that Americans were defending.

Developments in Massachusetts were first and foremost. They were a product of the Massachusetts Government Act, one of the Intolerable Acts. Three provisions of that act deprived the people of the Bay Colony of control over local government and thus struck at the heart of the colonial constitution. Under the colony’s 1691 charter, judges, sheriffs, and other officers of the courts were appointed by the governor but with the approval of the upper house of the legislature, in the election of which the lower house had the dominant say. Under the Massachusetts Government Act, the Crown’s appointed governor would choose those officers by himself. The second provision permitted towns to meet to elect town officials and representatives to the General Court, but prohibited town meetings for any other purpose without prior written approval of the governor.47

The third provision was the most important for the law. Instead of having jurors chosen by town meetings, the Massachusetts Government Act provided for the selection of jurors by sheriffs, who, in turn, were appointed by the governor.48 One need only compare the outcome of Erving v. Cradock, in which town-selected jurors subjected a customs official to a large damage judgment for seizing a ship for smuggling, with the verdict in one of the Boston Massacre cases, Rex v. Preston, in which a jury chosen by a sheriff acquitted Captain Preston of charges of murdering several civilians, to appreciate how this third provision (p.145) took ultimate control of the legal system out of the hands of the Massachusetts towns and put it into the hands of the royal administration.

In response to the Intolerable Acts, a Worcester County convention in August 1774 urged “every town in the province, to meet and adopt some wise, prudent, and spirited measures, in order to prevent the execution of these most alarming acts of parliament, respecting our constitution.” A town meeting held the next week in Pittsfield agreed that “the people . . . [should] utterly refuse the least submission to . . . these injurious, oppressive, and unconstitutional acts” by demanding “that the courts of justice immediately cease.” As a result of such demands, the courts were shut down in most Massachusetts counties. Relying, in effect, on James Otis’s argument in the Writs of Assistance Case, some of the judges even conceded that they had agreed to close the courts “on account of the unconstitutional act of the British parliament, respecting the administration of justice in this province.” Courts remained open only in three counties—Suffolk, where the British occupation army protected the judges in their sittings, and Essex and Cumberland, where the judges agreed to sit and function under the provisions of the 1691 charter rather than under the Massachusetts Government Act. Town meetings also ignored the Massachusetts Government Act and continued to function and maintain order under the 1691 charter.49

In neighboring Rhode Island, some unidentified radicals had burned a British schooner, the Gaspee, off the coast of Narragansett Bay even before the Boston Tea Party. While British authorities were considering how to respond to the burning, the Rhode Island Superior Court was drafting its explanation for the judgment it had rendered in Freebody v. Brenton. The court’s model remained one of mutual respect and compromise. The judges strove simultaneously to acknowledge the Privy Council’s authority while maintaining their own independence. They conceded that they had an “obligation of duty and respect” to the Privy Council’s “right . . . of hearing and determining all matter of appeal.” But at the same time they argued, as Pennsylvania’s judges had been maintaining for several decades, that they were not inferior servants who merely executed orders, but “judges, under a peculiar constitution,” with a duty of “making or giving judgment.” They had taken an oath to uphold Rhode Island’s “modes of practice, laws & customs,” which were “not in any essential point whatever repugnant to the laws of Great Britain,” but simply different. The judges asked the council to respect their oath and duty and not require “literal execution” of its order, but merely “near compliance” with “the most substantial part” of its decree. They ended by declaring that the parties had had “justice done them” by the Rhode Island court in the Freebody case and that “injustice would issue” if the Privy Council did not affirm the Rhode Island judgment.50

By the time the Privy Council replied in June 1774, no arrests had yet been made in the Gaspee burning, the tea had been dumped into Boston harbor, (p.146) Parliament had passed the Intolerable Acts, and the Privy Council had lost patience. Instead of ending its order with its customary request that the lower court “govern themselves accordingly,” the council “peremptorily order[ed], require[d] and command[ed]” the Rhode Island court to “comply punctually,” “forthwith and without delay,” to “yield due obedience,” and to put the Privy Council’s order “literally into execution.”51

From there the pattern of disrespect spread. After the filing of one more appeal to the council by the collector of customs in 1775, the Rhode Island legislature repealed its act permitting such appeals. The Privy Council then reversed the judgment against the collector. In June 1776 Rhode Island struck the king’s name out of its charter.52

The Intolerable Acts produced a similar breakdown of mutual respect and willingness to compromise in Virginia. In 1769, for example, although many Virginians had joined other colonists in a boycott of imported British goods that aimed to pressure British merchants to urge Parliament to repeal the Townsend duties, they had refused to take the more divisive step of putting further pressure on the merchants by withholding exports of tobacco. But after Parliament passed the Quebec Act and the other Intolerable Acts in 1774, Virginia did join a boycott that included a ban on tobacco exports.53

Nonexportation, however, created a problem. Without income from the sale of their tobacco, Virginia planters had no money with which to pay debts to British creditors. Thus, nonexportation required the enactment of legislation to stop debt collection, which, in turn, would further pressure Parliament to repeal the Intolerable Acts. Such legislation, though, appeared certain to be met with a gubernatorial veto and thus seemed incapable of being passed.54

But Lord Dunmore, the royal governor, came to the rescue. Under Virginia law, various fees paid to court officers were set by statute, and the statute setting those fees had expired in April 1774. Renewal of the fee bill thus was on the legislature’s agenda at its May 1774 session. But before the legislature could act, Governor Dunmore dissolved the House of Burgesses when it approved a resolution condemning Parliament’s closure of the Port of Boston. Historians dispute whether the House of Burgesses intentionally postponed consideration of the fee bill in the expectation that they would be dissolved or whether failure to enact the bill before dissolution was a mere accident.55

Whatever the intention of the legislature, the law, lawyers, and courts, in alliance with the economic interests of the planters, now entered the picture. At a rump session of the burgesses in Raleigh Tavern the day after dissolution, the issue arose how the courts should deal with the failure to enact the fee bill. Some thought they should stay open and establish fees by themselves, whereas others thought that, in the absence of statutory fees, the courts were required to close. An intermediate position was that courts should remain open for criminal (p.147) prosecutions, administration of estates, and recording of documents, but should not hear debt cases or civil suits more generally.56

Demonstrating their independence of the General Court as well as the authority of the Crown, the county justices did what most of the former burgesses wanted: in most counties, they remained open but heard only occasional debt and civil cases.57 Thus, in two counties for which records are printed—Caroline in the Tidewater and Fauquier in the Piedmont58—judicial business declined markedly. Caroline County records in the year from June 1773 to May 1774 are 173 pages in length and contain over sixteen hundred entries, whereas Fauquier records from June 1773 to April 1774 are 116 pages long with over nine hundred entries. From June 1774 to May 1775, in contrast, Caroline records are only 22 pages in length, with under three hundred entries, whereas Fauquier records are some 27 pages long, also with under three hundred entries. The disappearance of debt and other civil litigation, in short, reduced county court business to somewhere between 13 percent and 33 percent of what it had been.

The local judiciary through local legal interpretation rather than a legislative act thereby put maximum pressure on Parliament to repeal the Intolerable Acts. And there was nothing that the governor and the General Court could do in response, although the General Court itself, over which the governor presided, sought to remain open. But it too was forced to suspend its sessions when the small group of attorneys who practiced before it organized a boycott, which litigants and witnesses later joined.59 Local institutions on the ground simply overwhelmed what little power the central government of Virginia possessed.

The turn of Virginians to lawyers in the summer of 1774, following habits of mind that had grown up over the previous quarter century, effectively demonstrated their independence of royal authority and of the colony’s central government. Local courts, with their self-perpetuating membership, went about business as usual, except that they declined to hear the one category of cases—those involving debt collection—that British authorities most wanted them to hear. But although they acted independently, most Virginians were by no means ready to declare independence formally, even as tensions continued to mount through the autumn and winter of 1774–75.60

Then, in April 1775, Governor Dunmore took two steps that pushed Virginians to open rebellion. On April 21, apparently out of fear that he and other senior officials were threatened with bodily harm, Dunmore ordered the colony’s supply of gunpowder removed from the Williamsburg Powder Magazine and placed on board a royal naval vessel. The next day he quietly warned the speaker of the House of Burgesses that, if any senior British official was harmed, he would proclaim freedom for slaves. Several weeks later Dunmore himself fled Williamsburg and began raising an army to defend Britain’s interests. At first, he welcomed slaves who joined his forces by quietly promising them freedom, (p.148) and later, in November 1775, he issued a formal proclamation stating that he would free any slaves that joined. The threat of a slave revolt pushed Virginians nearly unanimously in the direction of independence. As a result, beginning in the spring of 1776, courts began to appoint officials such as sheriffs “pursuant to an ordinance of convention” rather than on a commission from the royal governor.61

Except in Massachusetts, where courts in all but the three counties noted above were closed down by Revolutionary forces, nearly all courts in the new American states remained open. Most colonial judges, with the exception of occasional Loyalists who left the bench and a few others, remained on the courts and continued to conduct business as they had for several decades. The one change that occurred in all of the courts, pursuant to a May 1776 resolution of the Continental Congress, was that they ceased meeting under the authority of George III and began meeting under new authority. In a remarkable display of localism, for example, the judges of Delaware, who formerly had sat in the name of the king, reconstituted themselves in August 1776 as the “Justices of the Government of New Castle, Kent & Sussex”—the three counties contained within the old colony. The Rhode Island Superior Court similarly met in September 1776 “at Newport within and for the County of Newport.” The General Sessions Court of the District of Charleston, South Carolina, met in the name of the king in May 1775, as “justices of the Colony of South Carolina” in April 1776, and as justices “of the State of South Carolina” in October 1776. Plaintiffs in civil cases in the same district continued to file on printed forms in the king’s name as late as October 1776, but were using new state forms by September 1777.62

The Connecticut Superior Court provides as good an example as any. By the winter of 1775–76, the people of Connecticut were choosing sides in the impending revolutionary struggle for American independence. Those who refused to respect the authority of the king and Parliament were in control of the institutions of local government, and they used that control to bring criminal prosecutions against pro-British members of the community who would not obey them, on such charges as sedition, passing sensitive information to British authorities, and enlisting in British military service. As late as February 1776, however, these prosecutions were still being brought in the name of the king; it was only in June 1776 that the courts hearing the charges were convened by special order of their chief judges and that prosecutions were brought in the name of the grand jury of the county. What was most significant was that at least occasional individuals, for reasons left unstated in the court records, were found not guilty of the offenses charged as those in control of the Revolutionary legal system still sought to maintain some bonds of community and justice.63

(p.149) The continued use of old legal tools, albeit for new purposes, occurred as well in the mid-1770s in South Carolina. A traditional power of grand juries in that colony, as shown in chapter 4, had been to present the grievances of the community. In the April 1776 term, the grand jury presented its grievances as it always had. But the grievances were no longer about local matters to which the justices of General Sessions had responded in the past. Now the grievances were about high politics. The people had come to understand that the “powers of government . . . were originally derived from themselves for the protection of their rights.” They were no longer prepared to accept what had been obvious only sixteen years earlier—that the “plantations [were] limited and dependant governments” under the sway of Parliament and the king and Privy Council. “[T]ho ever submissive to the just mandates of legal authority,” South Carolinians now found “intolerable to the spirit of a people born and nurtured in the arms of freedom . . . the unjust, evil and diabolical acts of the British Parliament.”64

Why did the people of South Carolina complain to the Court of General Sessions about the acts of the British Parliament? The answer is that General Sessions had always been the entity to which the people had complained. It was the entity of government that had always interacted with the people, and, with the dissolution of the imperial system in the spring of 1776, it remained the entity of interaction.

What the criminal prosecutions in Connecticut and the presentation of grievances in South Carolina illustrate is that the coming of the American Revolution placed new demands on government, but did not alter the institutions of government that always had responded to the society’s demands. Local courts had long been the principal institutions through which colonial government had functioned, and those same local courts, staffed by the same local elites, remained the principal institutions of Revolutionary government. The coming of the Revolution did not immediately transfer power from one class of rulers to another, nor did it immediately transform the institutions, mechanisms, and procedures through which those rulers governed. But it did place new demands on the law, and over time, the need to respond to those demands would change everything.


(1.) See, e.g., Peter David Garner Thomas, The Townshend Duties Crisis: The Second Phase of the American Revolution, 1767–1773 (Oxford: Clarendon Press, 1987); Pauline Maier, From Resistance to Revolution: Colonial Radicals and the Development of American Opposition to Britain, 1765–1776 (New York: Alfred A. Knopf, 1972).

(2.) See Brooke Hindle, “The March of the Paxton Boys,” William and Mary Quarterly, 3d ser., 3 (1946): 461; Nathan Kazuskanich, “‘Falling under the Domination Totally of Presbyterians’: The Paxton Riots and the Coming of the Revolution in Pennsylvania,” in William Pencak ed., Pennsylvania’s Revolution (University Park: Pennsylvania State University Press, 2010), 7.

(3.) See Richard Maxwell Brown, The South Carolina Regulators (Cambridge, Mass.: Harvard University Press, 1963), 18, 31, 34–35. A more recent article, Rachel N. Klein, “Ordering the Backcountry: The South Carolina Regulation,” William and Mary Quarterly, 3d ser., 38 (1981), 661, does not “challeng[e] Brown’s basic interpretation” of the legal demands of the Regulators or of the colony’s response to those demands, but “explores” in greater depth “the social conflict in the backcountry” from which “conflict emerged.”

(4.) See Brown, South Carolina Regulators, 38–42, 51–52.

(5.) See ibid., 64–82.

(6.) See ibid., 96–99, 109.

(7.) Julius Goebel, Jr., and T. Raymond Naughton, Law Enforcement in Colonial New York: A Study in Criminal Procedure (1664–1776) (New York: Commonwealth Fund, 1944), 86; Jacob Van Schaack to Cadwallader Colden, Dec. 31, 1760, quoted in Douglas Greenberg, Crime and Law Enforcement in the Colony of New York, 1691–1776 (Ithaca, N.Y.: Cornell University Press, 1974), 159.

(8.) Greenberg, Crime and Law Enforcement, 162–63.

(9.) See King v. Kelly, N.Y. Sup. Ct. Oct. 1764 (microfilm in possession of New York County Clerk); King v. Martine, N.Y. Sup. Ct. Apr. 1763 (microfilm in possession of New York County Clerk); King v. Braisher, N.Y. Sup. Ct. Apr. 1769 (microfilm in possession of New York County Clerk); Barns v. Bookhout, Dutchess Co. N.Y. Com. Pleas Ct. May 1762 (microfilm in possession of Dutchess County Clerk); King v. Underhill, N.Y. Sup. Ct. July 1772 (microfilm in possession of New York County Clerk).

(10.) Cadwallader Colden to General Gage, Sept. 7, 1774, quoted in Greenberg, Crime and Law Enforcement, 182. See Daniel J. Hulsebosch, Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664–1830 (Chapel Hill: University of North Carolina Press, 2005), 107–13.

(11.) See Sung Bok Kim, Landlord and Tenant in Colonial New York: Manorial Society, 1664–1775 (Chapel Hill: University of North Carolina Press, 1978), 376–86. A more recent book, Thomas J. Humphrey, Land and Liberty: Hudson Valley Riots in the Age of Revolution (DeKalb: Northern Illinois University Press, 2004), adds little to the narrative herein.

(12.) See Kim, Landlord and Tenant in Colonial New York, 386–417.

(13.) See Andrew Jackson O’Shaughnessy, The Men Who Lost America: British Leadership, the American Revolution, and the Fate of the Empire (New Haven, Conn.: Yale University Press, 2013), 353–56. The quoted language is at 355.

(14.) Boyd v. Partu, Hillsborough N.C. Sup. Ct. Mar. 1768 (microfilm in possession of North Carolina State Archives); Tew v. Cabe, Hillsborough N.C. Sup. Ct. Mar. 1768 (microfilm in possession of North Carolina State Archives); King v. Hunter, Hillsborough N.C. Sup. Ct. Sept. 1768 (microfilm in possession of North Carolina State Archives); King v. Tyrrel, Hillsborough N.C. Sup. Ct. Mar. 1768 (microfilm in possession of North Carolina State Archives).

(15.) King v. Tawnley, Salisbury N.C. Sup. Ct. Mar. 1766 (microfilm in possession of North Carolina State Archives); Howard v. Connell, Salisbury N.C. Sup. Ct. Mar. 1769 (microfilm in possession of North Carolina State Archives); Howard v. Connell, Salisbury N.C. Sup. Ct. Mar. 1766 (microfilm in possession of North Carolina State Archives).

(16.) See, e.g., Quinn v. McFaddon, Tryon County N.C. Ct. 1769, in Brent H. Holcomb ed., Tryon County North Carolina: Minutes of the Court of Pleas and Quarter Sessions, 1769–1779 (p.195) (Columbia, S.C.: SCMAR, 1994), 14 (assumpsit); Sills v. Hamilton, Rowan County N.C. Ct. 1762, in Jo White Linn, Abstracts of the Minutes of the Court of Pleas and Quarter Sessions, Rowan County, North Carolina, 1753–1789, 2 vols. (Salisbury, N.C.: privately printed, 1977–82), 1: 154 (case); Vause v. Griffith, Rowan County N.C. Ct. 1756, in Linn, Rowan Minutes, 1: 63 (debt); Cusick v. Kingsbury, Rowan County N.C. Ct. 1756, in Linn, Rowan Minutes, 1: 6 (defamation); Montgomery v. Hall, Orange County N.C. Ct. 1763, in Ruth Herndon Shields ed., Orange County, N.C. Abstracts of the Minutes of the Court of Common Pleas and Quarter Sessions, 1752–1766 (Greenville, S.C.: Southern Historical Press, 1991), 87 (scire facias); Stafford v. Cate, Surry County N.C. Ct. 1772, in W. O. Absher ed., Surry County, North Carolina Minutes, 1768–1789 (Easley, S.C.: Southern Historical Press, 1985), 3 (trespass); Mitchell v. Pearis, Rowan County N.C. Ct. 1768, in Linn, Rowan Minutes, 2: 82 (trover).

(17.) See Pickett v. Pickett, Orange County N.C. Ct. 1759, in Shields, Orange Minutes, 51.

(18.) See, e.g., Howard v. Douthit, Rowan County N.C. Ct. 1761, in Linn, Rowan Minutes, 1: 127 (nil debet); Giles v. Newell, Rowan County N.C. Ct. 1757, in Linn, Rowan Minutes, 1: 73 (non est factum); Nassery v. Wisenhunt, Rowan County N.C. Ct. 1763, in Linn, Rowan Minutes, 2: 16 (not guilty); Illegible v. Pitts, Rowan County N.C. Ct. 1757, in Linn, Rowan Minutes, 1: 70 (no such judgment).

(19.) See Deathridge v. Jones, Rowan County N.C. Ct. 1764, in Linn, Rowan Minutes, 2: 33 (payment); McGuire v. Tate, Rowan County N.C. Ct. Co. 1757, in Linn, Rowan Minutes, 1: 76 (tender); Price v. Rotton, Tryon County N.C. Ct. 1770, in Holcomb, Tryon Minutes, 39 (statute of limitations).

(20.) See, e.g., King v. Whitlow, Tryon County N.C. Ct. 1771, in Holcomb, Tryon Minutes, 74 (adultery); King v. Venables, Surry County N.C. Ct. 1771, in Absher, Surry Minutes, 2 (assault); King v. Gordon, Tryon County N.C. Ct. 1771, in Holcomb, Tryon Minutes, 79 (contempt); King v. Hoyle, Tryon County N.C. Ct. 1775, in Holcomb, Tryon Minutes, 149 (extortion); King v. Carter, Surry County N.C. Ct. 1772, in Absher, Surry Minutes, 1 (fornication by man); King v. Gwin, Surry County N.C. Ct. 1771, in Absher, Surry Minutes, 1 (fornication by woman); King v. Rankin, Rowan County N.C. Ct. 1768, in Linn, Rowan Minutes, 2: 77 (petit larceny); King v. Tevonhill, Tryon County N.C. Ct. 1769, in Holcomb, Tryon Minutes, 11 (profanity); Merritt v. Cooper, Orange County N.C. Ct. 1763, in Shields, Orange Minutes, 83 (trespass); King v. Enock, Rowan County N.C. Ct. 1756, in Linn, Rowan Minutes, 1: 56 (killing hog); Fine of Potter, Wake County N.C. Ct. Mar. 1772 (microfilm in possession of North Carolina State Archives) (missing jury duty); King v. Jones, Rowan County N.C. Ct. 1763, in Linn, Rowan Minutes, 2: 9 (passing counterfeit); King v. Robenson, Rowan County N.C. Ct. 1754, in Linn, Rowan Minutes, 1: 20 (unlicensed sale); King v. Thompson, Wake County N.C. Ct. Sept. 1772 (microfilm in possession of North Carolina State Archives) (commitment of felon). Criminal cases typically were resolved by jury verdicts. But there were occasional guilty pleas. See King v. Jones, Rowan County N.C. Ct. 1761, in Linn, Rowan Minutes, 1: 126. Cf. King v. Kelly, Tryon County N.C. Ct. 1774, in Holcomb, Tryon Minutes, 133 (jury finds “defendant guilty on his own submission”).

(21.) King v. Gordon, Orange County N.C. Ct. 1758, in Shields, Orange Minutes, 43–44; King v. Ned, Bute County N.C. Ct. Mar. 1768 (microfilm in possession of North Carolina State Archives).

(22.) See, e.g., King v. Ridge, Rowan County N.C. Ct. 1753, in Linn, Rowan Minutes, 1: 14; Coulter v. Buchanan, Tryon County N.C. Ct. 1774, in Holcomb, Tryon Minutes, 138; Rounsavil v. Johnston, Rowan County N.C. Ct. 1754, in Linn, Rowan Minutes, 1: 27.

(23.) Polk v. Elder, Tryon County N.C. Ct. 1770, in Holcomb, Tryon Minutes, 20; Howard v. Smith, Rowan County N.C. Ct. 1761, in Linn, Rowan Minutes, 1: 128; Coulter v. Buchanan, Tryon County N.C. Ct. 1775, in Holcomb, Tryon Minutes, 148; Watkins v. Bridges, Tryon County N.C. Ct. 1770, in Holcomb, Tryon Minutes, 30.

(24.) Order re Suits by Nonresidents, Rowan County N.C. Ct. 1755, in Linn, Rowan Minutes, 1: 40; Refusal of Howard, Orange County N.C. Ct. 1759, in Shields, Orange Minutes, 49 (no record whether Howard was sanctioned for refusal).

(25.) See Hugh Talmage Lefler and Albert Ray Newsome, The History of a Southern State: North Carolina (Chapel Hill: University of North Carolina Press, 3d ed. 1973), 77–81, 83–87; Harry Roy Merrens, Colonial North Carolina in the Eighteenth Century (Chapel Hill: University of (p.196) North Carolina Press, 1964), 53–60, 66; William S. Powell, North Carolina through Four Centuries (Chapel Hill: University of North Carolina Press, 1989), 150.

(26.) See Powell, North Carolina through Four Centuries, 150–51; King v. McKinny and King v. Knottery, Rowan County N.C. Ct. 1766, in Linn, Rowan Minutes, 2: 51; Order Postponing Causes on Reference, Trial & Appearance Docket, Rowan County N.C. Ct. 1766, in Linn, Rowan Minutes, 2: 51.

(27.) See Marjoleine Kars, Breaking Loose Together: The Regulator Rebellion in Pre-Revolutionary North Carolina (Chapel Hill: University of North Carolina Press, 2002), 134–39; Paul David Nelson, William Tryon and the Course of Empire: A Life in British Imperial Service (Chapel Hill: University of North Carolina Press, 1990), 70–89.

(28.) See Kars, Breaking Loose Together, 152–59; Nelson, William Tryon and the Course of Empire, 73–75.

(29.) See Kars, Breaking Loose Together, 182–85; Nelson, William Tryon and the Course of Empire, 75–78.

(30.) See An Act for Preventing Tumultuous and Riotous Assemblies, N.C. Laws of 1770, ch. 1, in Walter Clark ed., The State Records of North Carolina, 25 (Goldsboro, N.C.: Nash Brothers, 1906): 519a, 519b.

(31.) See Kars, Breaking Loose Together, 197–207; Nelson, William Tryon and the Course of Empire, 81–85.

(32.) See, e.g., Order re Road, Rowan County N.C. Ct. 1755, in Linn, Rowan Minutes, 1, 45; Motion of Gardner, Rowan County N.C. Ct. 1758, in Linn, Rowan Minutes, 1: 89 (recordation of grist mill as public mill); Deed from Cowan to Porter, Tryon County N.C. Ct. 1772, in Holcomb, Tryon Minutes, 91; Order re Sale of Harry, Chowan County N.C. Ct. Apr. 1758 (microfilm in possession of North Carolina State Archives) (directing sale of slave and division of proceeds among claimants to estate); Agreement between Shepperd and Allen, Surry County N.C. Ct. 1772, in Absher, Surry Minutes, 4; Motion of Dunn, Tryon County N.C. Ct. 1770, in Holcomb, Tryon Minutes, 24 (guardian); Apprenticeship of Baltrip, Rowan County N.C. Ct. 1770, in Linn, Rowan Minutes, 2: 110; Inventory of Estate of Brown, Rowan County N.C. Ct. 1769, in Linn, Rowan Minutes, 2: 96; Application of Carrel, Tryon County N.C. Ct. 1770, in Holcomb, Tryon Minutes, 39 (certificate about ears). See also Certification of Presbyterian Congregation of Catheys Settlement, Rowan County N.C. Ct. 1770, in Linn, Rowan Minutes, 2: 112 (registering building as church); Petition of Eller, Rowan County N.C. Ct. 1758, in Linn, Rowan Minutes, 1: 85 (petition to have record made of documents contained in pocket book lost by petitioner); Certification of Winberyer, Rowan County N.C. Ct. 1769, in Linn, Rowan Minutes, 2: 100 (certifying that accusation that Michael Beam had intercourse with his daughter was false); Oath of Cline, Rowan County N.C. Ct. 1755, in Linn, Rowan Minutes, 1: 42 (naturalization); Oath of Cargdel, Orange County N.C. Ct. 1753, in Shields, Orange Minutes, 4 (stating that one Davenport was “reputed a tattler & disturber where he lived in Virginia”).

(33.) Report of Tagert, Tryon County N.C. Ct. 1770, in Holcomb, Tryon Minutes, 49; Report of Allison, Rowan County N.C. Ct. 1770, in Linn, Rowan Minutes, 2: 114; Report of Lock, Rowan County N.C. Ct. 1769, in Linn, Rowan Minutes, 2: 101; Report of Allison, Rowan County N.C. Ct. 1769, in Linn, Rowan Minutes, 2: 99; Refusal of Wood, Rowan County N.C. Ct. 1771, in Linn, Rowan Minutes, 2: 126.

(34.) See King v. Hurd, Fairfield Co. Conn. Super. Ct. Feb. 1771 (manuscript in possession of Connecticut State Library).

(35.) Order re Swearing of Juries, S.C. Com. Pleas Ct. Aug. 1766 (typescript in possession of South Carolina State Archives); Orders re Chief Justice, S.C. Com. Pleas Ct. Aug. and Nov. 1767 (typescript in possession of South Carolina State Archives).

(36.) See Robert M. Weir, Colonial South Carolina: A History (Milwood, N.Y.: KTO Press, 1983), 299–301.

(37.) Application of Attorney General, S.C. Com. Pleas Ct. Oct. 1769 (typescript in possession of South Carolina State Archives); William Simpson, The Practical Justice of the Peace and Parish-Officer, of His Majesty’s Province of South Carolina (Charleston: Robert Wells, 1761), 225.

(38.) Motion of Attorney General, Pa. Sup. Ct. Apr. 1769 (microfilm in possession of Pennsylvania State Archives). On prior enforcement in Pennsylvania, see Lessee of Lewis v. Stammers, 1 (p.197) U.S. (1 Dallas) 2 (Pa. Sup. Ct. 1759); Lessee of Hyam v. Edwards, 1 U.S. (1 Dallas) 2 (Pa. Sup. Ct. 1759). For New York, compare Application of Elliot, N.Y. Sup. Ct. Apr. 28, 1768 (microfilm in possession of New York County Clerk) (writ of assistance granted “agreeable to an Act of Parliament”), with Motion for Writs of Assistance, N.Y. Sup. Ct. Jan. 23, 1773 (microfilm in possession of New York County Clerk), and Motion for Standing Writ of Assistance, N.Y. Sup. Ct. Apr. 21, 1772 (microfilm in possession of New York County Clerk), for two cases refusing to grant officials standing power to search.

(39.) See Weir, Colonial South Carolina, 305–11.

(40.) The case is most thoroughly analyzed in Joseph Henry Smith, Appeals to the Privy Council from the American Plantations (New York: Columbia University Press, 1950), 390–416. The following discussion is based entirely upon Smith’s analysis.

(41.) Colden’s position raised two issues. First, had the language been omitted to change practice or only because it was superfluous? Second, could the common law of a province be altered merely by a change in the governor’s instructions?

(42.) Smith, Appeals to the Privy Council, 390. See Michael Kammen, Colonial New York: A History (New York: Charles Scribner’s Sons, 1975), 350; Smith, Appeals to the Privy Council, 390 n.179.

(43.) Hurst v. Dippo, 1 U.S. (1 Dallas) 20, 21 (Pa. Sup. Ct. 1774); Anonymous, 1 U.S. (1 Dall) 20 (Pa. Sup. Ct. 1773). See ch. 2, p. 43 above.

(44.) Quoted in Mary Sarah Bilder, The Transatlantic Constitution: Colonial Legal Culture and the Empire (Cambridge, Mass.: Harvard University Press, 2004), 182. See ibid., 177–83.

(45.) See Hiller B. Zobel, The Boston Massacre (New York: W. W. Norton, 1971), 220–21, 231; L. Kinvin Wroth and Hiller B. Zobel eds., “Editorial Note,” in Legal Papers of John Adams, 1 (Cambridge, Mass.: Harvard University Press, 1965): 6–7, 17–19.

(46.) See, e.g., Peter David Garner Thomas, Tea Party to Independence: The Third Phase of the American Revolution, 1773–1776 (Oxford: Clarendon Press, 1993); Maier, From Resistance to Revolution; Robert A. Becker, Revolution, Reform, and the Politics of American Taxation, 1763–1783 (Baton Rouge: Louisiana State University Press, 1980).

(47.) See Ray Raphael, The First American Revolution: Before Lexington and Concord (New York: New Press, 2002), 49–50.

(48.) See ibid., 51.

(49.) Quoted in ibid., 63, 66, 135. See ibid., 63–156; William E. Nelson, Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760–1830 (Cambridge, Mass.: Harvard University Press, 1975), 67, 205 n.2.

(50.) Quoted in Bilder, Transatlantic Constitution, 183–84.

(51.) Quoted in ibid., 185.

(52.) See ibid., 185.

(53.) See Woody Holton, Forced Founders: Indians, Debtors, Slaves and the Making of the American Revolution in Virginia (Chapel Hill: University of North Carolina Press, 1999), 85–95, 100–111.

(54.) See ibid., 110–18; Frank L. Dewey, Thomas Jefferson: Lawyer (Charlottesville: University Press of Virginia, 1986), 99.

(55.) Compare Holton, Forced Founders, 117–18, with Dewey, Thomas Jefferson: Lawyer, 100–101.

(57.) See ibid., 97, 102.

(58.) The Antient Press of Virginia published printed records of Caroline County in 1994 and of Fauquier County in 1996.

(60.) See Holton, Forced Founders, 136, 144.

(61.) Appointment of Dally, Northampton County Va. Ct. Mar. 12, 1776 (microfilm in possession of Utah Genealogical Society). Accord, Appointment of Fleming, Botetourt County Va. Ct. Apr. 16, 1776 (microfilm in possession of Utah Genealogical Society). See Holton, Forced Founders, 133–36, 143–52; Jerrilyn Greene Marston, King and Congress: The Transfer of Political Legitimacy, 1774–1776 (Princeton, N.J.: Princeton University Press, 1987), 274–77.

(62.) Compare Opening of Kent Co. Del. Com. Pleas Ct. May 1776 (microfilm in possession of Delaware State Archives) with Opening of Kent Co. Del. Com. Pleas Ct. Aug. 1776 (microfilm (p.198) in possession of Delaware State Archives); Opening of R.I. Super. Ct. Mar. 1776 (microfilm in possession of Utah Genealogical Society) with Opening of R.I. Super. Ct. Sept. 1776 (microfilm in possession of Utah Genealogical Society); Opening of S.C. Gen. Sess. Ct. Charleston Dist. May 1775 (microfilm in possession of South Carolina State Archives) with Opening of S.C. Gen. Sess. Ct. Charleston Dist. Apr. 1776 (microfilm in possession of South Carolina State Archives) and Opening of S.C. Gen. Sess. Ct. Charleston Dist. Oct. 1776 (microfilm in possession of South Carolina State Archives); Lewis v. Edwards, S.C. Com. Pleas Ct. Charleston Dist. Oct. 1776 (microfilm in possession of South Carolina State Archives) with Dupont v. Beatty, S.C. Com. Pleas Ct. Charleston Dist. Sept. 1777 (microfilm in possession of South Carolina State Archives). Compare also Opening of Burlington Co. N.J. Gen. Sess. Ct. May 1776 (microfilm in possession of New Jersey State Archives) with Opening of Burlington Co. N.J. Gen. Sess. Ct. Nov. 1776 (microfilm in possession of New Jersey State Archives). For discussion of the congressional resolution, see Marston, King and Congress, 281–86, 296.

(63.) See King v. Hilborn, Litchfield Co. Conn. Super. Ct. Feb. 1776 (manuscript in possession of Connecticut State Library) (sedition); King v. Talbot, Fairfield Co. Conn. Super. Ct. Feb. 1776 (manuscript in possession of Connecticut State Library) (passing information); Connecticut v. Stebbins, Fairfield Co. Conn. Super. Ct. June 1776 (manuscript in possession of Connecticut State Library) (passing information); Connecticut v. McNiel, Fairfield Co. Conn. Super. Ct. June 1776 (manuscript in possession of Connecticut State Library) (enlisting); Connecticut v. Hall, Fairfield Co. Conn. Super. Ct. June 1776 (manuscript in possession of Connecticut State Library) (not guilty verdict).

(64.) Grievances of the Grand Jury, S.C. Gen. Sess. Ct. Charleston Dist. Apr. 1776 (manuscript in possession of South Carolina State Archives); Watson v. Williams, S.C. Com. Pleas Ct. Jan. 1760 (typescript in possession of South Carolina State Archives); Grievances of the Grand Jury, S.C. Gen. Sess. Ct. Charleston Dist. Apr. 1776 (manuscript in possession of South Carolina State Archives).