Legal Literature in Colonial Massachusetts

    ALMOST every substantial discussion of law or lawyers in colonial America includes some reference, at least in passing, to the paucity of lawbooks throughout the colonies and the lack of any significant local law publishing. No American court reports were published until 1789; no major treatises from any source were issued here until the publication of Blackstone’s Commentaries in Philadelphia in 1771–1772; and there was virtually no writing on technical legal doctrine until the controversies over the adoption of the federal constitution.

    Lawrence Friedman’s conclusions in A History of American Law are typical:

    In one sense, colonial legal literature is quickly disposed of: there was no such thing worthy of the name before 1776. Law libraries were scarce, small, and scattered. What they contained was English law, with perhaps a collection of local statutes. Native law books were few and utterly insignificant. No substantial body of case law was in print until after the Revolution.904

    Charles Warren in A History of the American Bar,905 Anton-Hermann Chroust in The Rise of the Legal Profession in America,906 and Paul Hamlin in Legal Education in Colonial New York907 all comment on that lack of legal writing and publishing and on the general scarcity of lawbooks in the colonies.

    Considerably more information has now been provided by Herbert Johnson’s careful analysis of the library inventories and catalogs of some twenty-two colonial lawyers and judges in his study, Imported Eighteenth Century Law Treatises in American Libraries 1700–1799.908 From his listings of these relatively extensive collections, we get a much fuller view of what English lawbooks were held here. The earlier publication of law library lists by Edwin Wolf, II,909 and Paul Hamlin910 had indicated that the distinguished collections of John Adams, William Byrd, II, and Thomas Jefferson were not as exceptional as had been assumed. Johnson has shown us the breadth, depth, and sophistication of these early law libraries. But the inventories on which his work is based tend to confirm the absence of a domestic legal literature of traditional texts.

    In 1934 Eldon R. James, then Librarian at the Harvard Law School, compiled the first substantial list of “legal treatises printed in the British Colonies and American States before 1801.”911 That list, largely drawn from Charles Evans’ American Bibliography,912 records only two treatises published here in the seventeenth century and a total of only fifty treatises through the year 1776. James prefaces his bibliography with the following comment: “In the hundred years between the publication in 1687 of William Penn’s gleanings from Lord Coke and the issuance of the American editions of Buller’s Nisi Prius and Gilbert’s Evidence in 1788, not a single book that could be called a treatise intended for the use of professional lawyers was published in the British Colonies and the American States.”913 That conclusion rests, of course, on James’ restricted concern with treatises and on his limiting qualification “for the use of professional lawyers.” Professional lawyers, it should be recalled, were a very small group in Massachusetts in the seventeenth and well into the eighteenth centuries.914

    If; however, we define legal literature more broadly as including any publication which reflected and influenced the law and the legal system operating in the colonies, we can identify a larger body of material. This literature would include publications of the founding charters; the early seventeenth-century legal codes; the statutes enacted by colonial legislatures and the proceedings of such bodies; formbooks and practical guides designed to assist the lay judiciary and the public in the conduct of their legal business; religious works, sermons, and tracts on legal issues; reports of important trials and legal proceedings; treaties and reports of treaty conferences between the colonists and local tribes of native Americans; and colonial reprints of English legal texts and accounts of legal developments in the colonies found in political pamphlets, personal memoirs, and histories published here and in England.

    Zechariah Chafee, Jr., in his 1969 analysis of three theories of American colonial law, published in “Colonial Courts and the Common Law,”915 called for a fuller study of colonial lawbooks:

    Since law is a function of lawbooks . . . scholars need more information about books on English law which were owned in the Colonies. Carlyle defined a university as a great collection of books, and the same may be said of a system of case-law and detailed doctrines. Until very many books were available to colonial courts and lawyers, the common law must have mainly stayed a body of general principles. The law grew as law libraries grew.

    Thanks to Professor Johnson, we now have a comprehensive study of imported English legal treatises in the major colonial libraries owned by lawyers and judges. We still need, however, an integrated survey of the total literature of and on the law which was published in the colonies. Eldon James’ list is a beginning, but too limited in scope. The statutory material has been well listed,916 but in isolation from other legal publications. Although the traditional wisdom of a meager legal output may not be seriously refuted by a broader view of domestic literature, such a view is long overdue and may suggest new insights into colonial legal history. For this conference on law in colonial Massachusetts, I will offer a brief survey of the legal literature produced in Massachusetts before Independence. The publications referred to in each category are not meant to constitute an exhaustive listing, but are, rather, merely illustrative of the various types of law-related material which were published here. The bibliography of American law up to 1860 which Balfour Halevy and I have been preparing will, in the near future, we hope, offer a much fuller picture.917 Since the focus of this paper is on works printed in Massachusetts, it should be noted that some of the Massachusetts authors were published in the other American colonies or in London and that many of the lawbooks printed in the other colonies were widely circulated in Massachusetts. This, therefore, is not intended to provide a comprehensive survey of the legal literature produced by, or used in, the Bay Colony.

    The Beginnings

    The first printing in the American colonies was from the press established at Cambridge, Massachusetts, in 1639. Presses were then set up in Boston in 1675; in Jamestown, Virginia, in 1682; in Maryland in 1685; in Philadelphia in 1685; and in New York in 1693.918 It has been estimated, however, that by 1755 there were only twenty-four presses operating in fifteen towns of ten of the American colonies.919 Specialized law publishing did not develop in America until Stephen Gould, who had started a printing business and bookshop in New York City in 1790,920 began in 1803 to concentrate on legal publications.

    Virtually every significant colonial printer, beginning with the first press in the colonies—that of Steven Day in Cambridge—published lawbooks or books related to law. The presses of Massachusetts were, into the early eighteenth century, the most active legal printers in the colonies. Of the seven volumes listed by Charles Warren as the first seven lawbooks printed in the American colonies,921 six were published in Boston. Although both Philadelphia and New York overtook Boston by the middle of the eighteenth century as the leading centers of law printing, an examination of the production of the Massachusetts presses reveals the wide range of law-related publishing before Independence. Considering the size of the population in colonial Massachusetts and the difficulties of establishing a life here, the volume of domestic printing, and of legal publication in particular, seems appropriate to local needs. It has been said “that, throughout the seventeenth century at least, printing and bookmaking in the American colonies were of much the same character as in the English ‘provinces’ at home.”922

    The extent of printing in the colonies before Independence can be measured most easily by the entries in Charles Evans’ American Bibliography, although the actual volume of printing is now considered to be much larger than that recorded by Evans.923 When the first volumes of the American Bibliography were published in 1903, they included a total of 14,638 titles for the period up to 1776. Of that number 967 were issued through 1700. In 1903, Evans predicted, in the preface to his first volume, that, even with later discoveries, the number of imprints through 1700 was unlikely to exceed one thousand. Nevertheless, Roger Bristol’s supplement to Evans,924 published in 1970, added 4,175 titles to Evans for the period up to 1776, of which two hundred and fifteen were issued before 1701.

    Thus, from 1639 to 1776, using Evans and Bristol, we find a total of 18,813 imprints from the presses in the British colonies which are now part of the United States. Of that number 1,182 were published before 1701. Reviewing those 1,182 imprints from their bibliographic entries, I find approximately four hundred, or over one-third, are of legal import or significance.925 That count includes government proclamations, single acts and orders of general application, and law-related sermons, but it excludes advertisements, single legal forms, and commissions or instruments of limited application. Of these four hundred printings prior to 1701, two hundred and eighty-five, or about 70%, were issued in Massachusetts. With the spread of printing throughout the colonies after 1700, we can assume that the proportion of Massachusetts publishing to the total in America before Independence was much lower. Still, these figures indicate the importance of the Massachusetts presses in what can be considered the period of American incunabula, particularly with regard to legal printing.

    The story of the first press in America has been told often, but remains a curiosity of American printing history.926 The Reverend Josse Glover, bringing the press to Massachusetts on the good ship John in 1638, died during the voyage. He had been accompanied by Mrs. Glover, their five children, and a locksmith named Steven Day, who was to operate the press. The press was set up in Cambridge by the widow and printing began. Two years later Mrs. Glover married Henry Dunster, president of Harvard College, thereby giving him an important role in the control of the press.

    The first publication of the Glover-Day press was a broadside containing a civic oath, which has come to be called The Oath of a Free Man.927 The oath was required for citizenship in the colony from every resident over twenty years of age who had been a householder for at least six months. A typical formulary of the time, it was based on a 1634 text adopted by the General Court and contained some variations from the contemporary English versions which shed light on political attitudes in the Massachusetts Bay colony. No copy of the broadside is known to survive, but John Winthrop’s earlier manuscript draft, possibly dating from 1631, is at the Boston Public Library. The text was reprinted in London in 1647 in John Child’s controversial pamphlet, New-Englands Jonas East up at London.

    18. Reconstruction of the content and typography of the first printing (1639) of the Glover-Day Press in Cambridge, Massachusetts, The Oath of a Free-Man. Courtesy of The Press of the Woolly Whale Collection, Beinecke Rare Book and Manuscript Library, Yale University.

    Charles Evans has traced the history of the text and reconstructed the probable 1639 version, which included a rather nice closing addition to the usual form of such oaths:

    . . . when I shall be called to give my voice touching any such matter of this State, in which Freemen are to deal, I will give my vote and suffrage as I shall judge in mine own conscience may best conduce and tend to the public weal of the body, without respect of persons, or favor of any man.928

    John Winthrop recorded the first printing of the Day press in his Journal in March 1639 as follows:

    A printing house was begun at Cambridge by one Daye, at the charge of Mr. Glover, who died on seas hitherward. The first thing which was printed was the freeman’s oath; . . .929

    It is significant that printing began in Massachusetts with a document of legal interest—not a lawbook certainly, but a dramatic prologue for what follows.

    Codes and Statutes

    Clearly, the most numerous legal publications of the colony were statutory in nature, beginning with the early codes, printed in London and Massachusetts. William Whitmore’s Bibliographical Sketch of the Laws of the Massachusetts Colony from 1630 to 1686930 provides useful detail on the texts, but the early printing history of the codes is still unsettled.

    The first effort at printing codes was made by John Cotton for the General Court in 1636 and called Moses His Judicials because of its biblical basis.931 That text, however, was not enacted and in 1639 Nathaniel Ward prepared another draft, “The Body of Liberties.” Both the Cotton and Ward statements were strongly biblical in derivation, but Ward—with his legal training and experience in England—produced a more acceptable draft, which was adopted by the General Court in 1641. Nevertheless, it was apparently not then printed. A passage in the preface to John Child’s New-Englands Jonas . . . suggests the existence of a Cambridge printing of Ward’s code, but references in the records of the General Court to the preparation and distribution of manuscript copies seem to belie such a printing.932 John Cotton’s draft, on the other hand, was published in London in 1641, probably on the mistaken assumption there that it had been adopted in the colony.933 Although rejected in Massachusetts Bay, Cotton’s text was taken to Connecticut, where it served as the basis of the fundamental law and frame of government for the New Haven colony.

    The first statutory compilation printed in the colony, The Book Of The General Lawes And Libertyes, included eighty-six out of the one hundred clauses of Ward’s “Body of Liberties.” The Ward material constituted less than a fifth of the whole work. The compilation was published in 1648 by Matthew Day, Steven’s son and successor, and carried the following title:

    The Book Of The General Lawes And Libertyes Concerning The Inhabitants Of The Massachusets Collected Out Of The Records Of The General Court For The Several Years Wherein They Were Made And Established, And now revised by the same Court and disposed into an Alphabetical order and published by the same Authoritie in the General Court held at Boston the fourteenth of the first month Anno 1647. . . .934

    The only copy known to have survived was found in Rye, England, in 1906. It is now at the Huntington Library and has been reprinted in several facsimile editions.935 The records of the General Court indicate that each copy of the original printing took seventeen sheets; that six hundred copies were made, using twenty-one reams of paper; and that each copy sold for seventeen pence. The printing cost £15 16s 3d and the paper £5 5s.936

    19. Title Page of Matthew Day’s printing of The Book of the General Lawes and Libertyes (Cambridge, 1648), now at the Huntington Library, San Marino, California. Courtesy, Huntington Library.

    The Days were succeeded as Dunster’s printer by Samuel Green in 1649. The press passed to Harvard College some time before 1658, and a second press was set up in Cambridge in 1659. Bartholomew Green, Samuel’s son, opened another press in Boston in 1690. He soon became the dominant printer in the area. Statutory publications by these presses were numerous and included three supplements to the General Lawes And Libertyes (Cambridge, 1650, 1654, and 1657), The Book Of The General Lawes (Cambridge, Samuel Green, 1660), and The General Laws And Liberties . . . Revised Reprinted by Edward Rawson (Cambridge, Samuel Green for John Usher, 1672).

    The Cambridge and Boston presses also printed legal materials for other colonies. Compilations for the Plymouth Colony were issued in 1672 (Book of the General Laws of . . . New-Plymouth . . . , Cambridge, Samuel Green) and in 1685 (Book of the General Laws . . . , Boston, Samuel Green); for the Connecticut Colony in 1673 (Book of the General Laws For the People within the Jurisdiction of Connecticut . . . , Cambridge, Samuel Green); and for the New Hampshire Province in 1699 (Acts and Laws, Passed by the General Court or Assembly of . . . New-Hampshire . . . , Boston, Bartholomew Green, and John Allen).

    Laws And Orders of the General Court for the Massachusetts Bay Colony were issued regularly beginning in 1661, with fifty-five separate issues for the years 1661 to 1691; one hundred and forty-six separate issues for the period of the Province from 1692 to 1742; and two hundred and eight issues of Acts and Laws from November 1742 to 1775. Most of these were publications of only a few sheets, but they indicate a regular pattern of the printing of laws shortly after enactment. Government printing was an established practice in the colony. Virtually all of it was legal in nature.937

    The Charters of Massachusetts were printed in Boston in 1689, 1692, 1699, 1725, 1742, 1759, and 1775; compilations of the Charter, Acts and Laws . . . in 1699, 1714, 1726, 1742; and 1759; and collections of Temporary Acts and Laws . . . in 1742, 1755, and 1763. Proclamations, resolutions, and orders of the Council, Governor, Lieutenant Governor, and the General Court were regularly printed, usually as single sheets. Such broadsides were the usual form of publicizing governmental actions and announcements. The Journal of the House of Representatives was regularly published from 1715 to 1774 and totalled over one hundred and fifty separate issues during that period.

    Legal Manuals

    Lay judges, peace officers, and other local officials, as well as the educated public, needed instruction in the proper use of legal procedures and the standard forms required by such procedures. That need led to the publication of numerous manuals and formbooks in England prior to the settlement of America. It was to be expected that similar guides would be needed in the colonies, where access to professional assistance was more difficult and opposition to the legal profession so strong. Probably the most popular of the American manuals was Conductor Generalis . . . , first published in New York by William and Andrew Bradford in 1711938 and reissued in at least seven editions before Independence—all outside of Massachusetts. Although Conductor Generalis . . . was never printed in Massachusetts, another comparable guide was published here: An Abridgment of Burn’s Justice of the Peace and Parish Officer (Boston, Joseph Greenleaf, 1773). Similar works were also published in Virginia (The Office and Authority of a Justice of Peace, Williamsburg, William Parks, 1736); South Carolina (The Practical Justice of the Peace and Parish-Officer . . . , Charlestown, Robert Wells, 1761); New York (Every Man His Own Lawyer . . . , New York, Hugh Gaine, 1768); and North Carolina (The Office and Authority of a Justice of Peace, Newbern, James Davis, 1774).

    It seems surprising that no substantial legal manuals were published in Massachusetts until the appearance of Joseph Greenleaf’s Abridgment of Burn’s Justice of the Peace in 1773. This may have been due to the availability of English editions of Burn’s popular but massive work939 and the wide distribution of Conductor Generalis throughout the colonies. Two earlier manuals—more modest in coverage than Greenleaf’s abridgment—were also published in Massachusetts, both of which seem to have been prepared from local sources with little direct inclusion of English material. These were Nicholas Boone’s The Constables Pocket-Book . . . (1710),940 and The County and Town Officer . . . (1768).941 Unlike Conductor Generalis and the Abridgment of Burn’s Justice of the Peace, these guides, with their heavy Massachusetts emphasis, were not widely distributed in the other colonies. Boone was a Boston bookseller who had also served as a constable here. The author of The County and Town Officer is not known.

    Joseph Greenleaf, who abridged and adapted Burn’s Justice, was a Boston printer and a writer for the colonial cause. He had been a justice of the peace for Plymouth county, until he was dismissed by the Council in 1771 for his involvement with Isaiah Thomas in publishing the seditious Massachusetts Spy and for his failure to appear before the Council when summoned in that regard.942 The growing movement for independence from England and its effect on local law may be inferred from the following statement in Greenleaf’s preface to his Abridgment of Burn’s Justice of the Peace:

    . . . The circle of a justices business in those places [England and Scotland] is vastly extensive, and is founded chiefly on acts of the British parliament, which can never have any relation to this colony, such parts therefore are not taken into this abridgment. What we have rejected relates to acts made for the regulating their woolen manufactory, witchcraft, weights and measures, vagrants, treasure, transportation, torn, tobacco, tiles, titles, thames, stock in company, stamps, soldiers, shoemakers, servants, seamen, public worship, prophecies, players, plague, physicians, pewter and other mettles, peer, northern borders, old and new militia, linen cloth, leather, land tax, custos rotulorum, cottage, cole and cole pits, clergy, churchwardens, church and yard, black act, billets, and a number of articles, under other heads of no possible use or importance to use in America.

    Reprints of English Texts

    Despite the legal, political, and cultural ties between England and her American colonies, we find remarkably few English lawbooks reprinted here. The importation of English lawbooks and their wide dissemination throughout the colonies, particularly toward the middle of the eighteenth century, may partially explain the lack of local reprints. The small number of professional lawyers was undoubtedly another factor of significance, indicating a limited market. There was certainly very little reprinting of English books in general in seventeenth-century Massachusetts, and the number of lawbooks remained low until the 1770’s. Robert Bell’s Philadelphia edition of Blackstone’s Commentaries in 1771–1772 was the first major undertaking of this type in the whole of colonial America.

    Although the publication of technical and doctrinal legal treatises was substantial in England in this period, none was reissued in Massachusetts. In the early period of the Massachusetts Bay Colony this may have been in part a function of the Puritan cast of that legal system, its relatively simple economic base, and its borrowing from English local government law.943 By the middle of the eighteenth century growing political contention with Britain and increased importation of English treatises by professional lawyers were also factors that may have discouraged reprints. A comparative study of the cost of imported books—data is easily available in Herbert Johnson’s study of such imports—and local printing costs here—available from a few surviving printer’s records—might shed further light on this factor.

    When reviewing those English works which were reprinted in Massachusetts, it is noteworthy that, except for Joseph Greenleaf’s Abridgment of Burn’s Justice of the Peace, they were virtually all books dealing with the rights and liberties of Englishmen and were originally issued in London during the political controversies of 1680–1682, following the “Popish Plot.” Their later publication here was probably based more on their local political significance than on any great legal value. Bernard Bailyn has recognized the influence of the earlier English conflict on pre-revolutionary American political writing.944 He does not, however, focus on the several reprints of English radical pamphlets discussed below.

    The first American reprint of an English lawbook may have been that of Sir John Hawles’ The Englishman’s Right: a dialogue between a barrister at law, and a jury-man. Plainly setting forth I. The antiquity II. The excellent designed use III. The office & just privileges of juries. By The laws of England (Boston, Benjamin Harris, 1693). Although doubt has been raised about the existence of this 1693 edition,945 an apparently unique copy at Yale’s Beinecke Library now confirms its publication in Boston. Hawles was a Whig member of Parliament and served as Solicitor General from 1695 to 1702. Holdsworth has described this and another work on juries by Hawles as follows: “Though weak in their history, they give a clear description of the jury’s rights and duties, and good advice as to the conduct of jurymen.”946 The local relevance of this text seems clear, and it was reprinted in Boston in 1772 and in Philadelphia in 1798 and in 1806.

    Henry Care’s English Liberties, or the Free-Born Subject’s Inheritance, was first printed in London by George Larkin, for Benjamin Harris, without an imprint date. Wing947 suggests 1680 as the probable year of publication. Care was a political journalist and editor of the anti-Catholic paper, Weekly Pacquet of Advice from Rome. He was convicted of libel for attacks on the Church of England for its papist tendencies and for attacks on its members, including Chief Justice Scroggs, who presided at Care’s trial.

    Harris, another anti-Catholic radical, was a prominent participant in the “expose” of the imaginary Popish Plot of 1678. He was forced to flee to America in 1686 in part for his publication of English Liberties, five thousand copies of which were seized by the authorities.948 Harris made several trips back to England, but was one of the most active Boston printers and booksellers from 1687 to 1695. It is significant that he also published The Englishman’s Right (above) and the first London edition of The Triumphs Of Justice Over Unjust Judges . . . (below). He is perhaps best known, however, as the author and first publisher of the long-popular and frequently reprinted New England Primer.

    English Liberties was reprinted in London in 1700, 1703, and 1719, and printed in Boston in 1721 by James Franklin and again in Providence in 1774. The appearance of imported editions in several colonial law libraries and the survival of many copies of the Boston and Providence editions confirm its considerable popularity here. As indicated by its full title,949 English Liberties is a melange of historic English legal documents, a text on rights and liberties, and a manual for justices of the peace, various local officials, and peace officers. It was a lawbook of many uses for Americans. It has been described by Bernard Bailyn as “a combination casebook in law, guide to legal procedures, and Anglophile propaganda piece. . . .”950

    20. Title Page of Henry Care, English Liberties, from its first American edition, printed in Boston by James Franklin, 1712. Courtesy, Yale Law School.

    Another radical English legal and political tract was published in London by Benjamin Harris at about the same time as English Liberties. It too was reprinted in Boston, probably by Samuel Kneeland and Thomas Green in 1732. Its title, from the London edition, reveals something of both its content and rationale:

    The Triumphs Of Justice Over Unjust Judges; Exhibiting, I. The Names and Crimes of Four and Forty Judges Hand’d in one Year in England, as Murderers for their corrupt Judgments. II. The Case of the Lord Chief Justice Tresilian, Hang’d at Tyburn, and all the rest of the Judges of England (save one) banisht in K. Rich, the 2ds Time. III. The Crimes of Empson and Dudley, Executed in K. Henry the 8th’s Days. IV. The Proceedings of the Ship-money-Judges in the Reign of K. Charles the First. V. Diverse other Presidents both Antient and Modern. To which is added VI. The Judges Oath, and some Observations thereupon. Humbly Dedicated to the Lord Chief Justice Scroggs . . . London, Printed for Benjamin Harris, at the Stationers Arms, 1681.

    Signed only with the pseudonym, “Philo-Dicaios,” this work, with its timing, style, and ironic dedication to Justice Scroggs, suggests Harris or Care as the probable author, although a definite attribution has not been made. Scroggs had presided at Care’s trial, as noted above, and at one of Harris’s trials as well, both shortly before this publication.

    Finally, we should note an Evans entry951 for a doubtful Boston, 1720 edition of John Somers, The Security of Englishmen’s Lives, or the Trust, Power and Duty of the Grand Juries of England . . . (London, 1681). This text was listed by Charles Warren as one of the first seven lawbooks printed in America.952 No copy of the Boston edition has been located, and Shipton and Mooney indicate “Title from Prince,” but it is not listed in the Catalogue Of The American Portion Of The Library Of The Rev. Thomas Prince, by William H. Whitmore.953 It was reprinted in New York in 1773, by Hodge and Shober, for Noel and Hazard (Evans 13.024). Subsequent to this work, Somers became Attorney General and then Lord Chancellor, and, according to the Dictionary of National Biography, this tract was “a vindication of the right of the grand jury to reject the bill of indictment against Lord Shaftesbury.”954 Somers’ work reflects the same political attitudes as those of the previous pamphlets, as is indicated by the declaration on its title page that it had been “Published for the prevention of popish designs against the lives of many protestant lords and commoners, who stand firm to the religion and the ancient government of England.”

    Religious Writing on Legal Issues

    Religious concerns were the reason why many of the early settlers of Massachusetts came, and religion continued to provide a central focus of their life and literature through most of the seventeenth century. Religion shaped the law and government of the colony955 and influenced the social and personal conduct of the colonists. In the early years of settlement, religious and civic matters were often inseparable, and the leaders of the colony frequently functioned in both spheres.

    It is, therefore, not surprising that most of the writing in seventeenth-century Massachusetts was religious in nature. Religious works constituted the largest single part of the published literature. Works by Increase and Cotton Mather alone accounted for approximately six hundred separate publications in Massachusetts in the seventeenth and first half of the eighteenth centuries, exclusive of later reprints and printings outside of Massachusetts.956 Sermons, tracts, and books of religious instruction and inspiration dominated the presses of Massachusetts through the seventeenth century and continued to represent a significant portion of the printing business in the eighteenth century. One researcher has estimated the proportion of religious writing in the output of all of the American presses for the period from 1639 to 1763 at 37%.957

    In addition to the Puritan influences on the early legal codes and on the governance of the New England colonies, many of the religious leaders spoke out and wrote on legal issues. The number and range of such writings are beyond the scope of this paper, but the following few examples from the writings of Cotton Mather are illustrative of this literature. Their respective titles give some indication of content and legal relevance, but for fuller treatment see the entries in Thomas J. Holmes’ bibliography of Cotton Mather, as cited.

    A Faithful Monitor. Offering, An Abstract of the Lawes in the Province of the Massachusett-Bay, New-England, Against those Disorders, the Suppression whereof is desired and pursued by them that wish well to the worthy Designs of Reformation. With some Directions and Encouragements, to dispense due Rebukes, 6? Censures unto all Censurable Actions . . . (Boston, Printed and sold by Timothy Green, 1704.)958

    Lex Mercatoria. Or, The Just Rules of Commerce Declared. And Offenses against the Rules of Justice in the Dealing of men with one another, Detected. With a Testimony Publicly given against all Dishonest Gain, in the Audience of the General Assembly of the Province of Massachuset-Bay, New-England. Nov. 9. 1704. (Boston, Printed and Sold by Timothy Green, 1705.)959

    Fair Dealing between Debtor and Creditor. A very brief Essay Upon The Caution to be used, about coming in to Debt, and getting out of it. Offered at Boston-Lecture; 5.d.XI.m. 1715/16 . . . (Boston, Printed by B. Green, for Samuel Gerrish, 1716.)960

    Bonifacius. An Essay Upon the Good, that is to be Devised and Designed, By Those Who Desire to Answer the Great End of Life, and to Do Good While they Live. A Book Offered, First, in General, unto all Christians, in a Personal Capacity, or in a Relative. Then more Particularly, Unto Magistrates, unto Ministers, unto Physicians, unto Lawyers. . . . (Boston, Printed by B. Green, for Samuel Gerrish. 1710.)961

    Mather’s Bonfacius . . . ,962 perhaps his most often reprinted work, included a section (No. 20) dealing with lawyers. Among his admonitions to lawyers were these:

    A lawyer that is a knave deserves death more than a band of robbers; for he profanes the sanctuary of the distressed, and betrayes the liberties of the people. (160)

    This piety must operate very particularly, in the pleading of causes. You will abhor, Sir, to appear in a dirty cause. If you discern, that your client has an unjust cause, you will faithfully advise him of it. . . . (161)

    You will abominate the use of all unfair arts, to confound evidences, to browbeat testimonies, to suppress what may give light in the case. . . . (161)

    In plain English: excessive fees must be disgorged by restitution. . . . (163)

    Wealthy people going to make their wills, often ask your advice. You may take the opportunity to advise them, unto such liberalities upon pious uses, as may greatly advance the King of God in the world. . . . (164)

    Is there nothing to be mended in the laws? Perhaps, you may discover many things yet wanting in the law; mischiefs in the execution and application of the laws, which ought to be provided against; mischiefs annoying of mankind, against which no laws are yet provided. The reformation of the law, and more law for the reformation of the world, is what is mightily called for. . . . (165)

    Your learning often qualifies you to write excellent things, not only in your own profession, but also on all the entertaining and edifying themes in the work. The books that have been written by learned lawyers, would for number almost equal an Alexandrian library. . . . Sirs, you may plead the cause of religion, and of the reformation, by your well directed pens; and you may do innumerable services. . . . (165–166)

    Many of the sermons delivered in colonial Massachusetts were subsequently printed and thus reached a larger audience and had impact far beyond their original auditors. In addition to their usual didactic function in the worship service, sermons were also an important feature of various public ceremonies and events. Among the most numerous of these were election sermons, usually delivered at the opening of a legislative session,963 and execution sermons, delivered at the execution of convicted criminals or on the following Sabbath.964 Approximately one hundred election sermons, and almost the same number of printings of about fifty execution sermons, were made in Massachusetts before Independence. Both types of sermons frequently contained material which described aspects of the legal system or commented on current legal concerns.

    An example of an election sermon is Cotton Mather’s The Serviceable Man. A Discourse Made unto the General Court Of The Massachusets Colony . . . (Boston, Samuel Green, 1690).965 The colony had deposed the Andros government, and the provisional government under Simon Bradstreet was temporarily in office, awaiting the charter which Increase Mather and others were seeking in London. Cotton Mather, comparing the restored colonial government to that of the Jews in Jerusalem under Nehemiah after the Babylonian captivity, focuses on a variety of local troubles, including several of legal import. He refers to the burdensome cost of the war with the French and the Indians, the poor trade conditions, the foreclosure of mortgages made at 12% interest, the former oppressions of the Andros government, the dangers posed by Quaker activity, the poor pay of teachers, and the need for more schools. More broadly, he calls upon the populace and its leaders to be public spirited and to support and obey the government of the colony.

    Published execution sermons could contain more than the usual exhortations to the criminal and warnings to the youth of the community and the general public. They gradually began to include material relating to the life, misdeeds, and disposition of the condemned. These included short biographical or autobiographical narratives; brief summaries of the trial proceedings; the criminal’s confession; and his or her last conversations or gallows speech. The careful researcher can learn much about crime, criminals, and their adjudication from these documents. The printed version of one such sermon, Cotton Mather’s Pillars of Salt,966 included brief accounts of eleven other executed criminals in addition to that of the immediate subject.

    Sermons and religious tracts frequently reflected religious, legal, and political controversies in colonial Massachusetts. The list is a long one. Some of these disputes will be referred to in the next section of this survey, but we can note a number of examples: the suppression of the Antinomian movement, the Quakers, the Presbyterians, arid other non-Congregationalists; the trial of Samuel Gorton; the remonstrance of Robert Child; the revocation of the Charter; the rebellion against Governor Andros; the quest for restoration of the Charter; the short-lived Dominion of New England; the Salem witchcraft trials; the struggle against Governor Joseph Dudley; the “heresies” of Jonathan Mayhew; and finally the series of crises leading to the American revolution.

    Each of these disputes had serious legal implications, and all of them involved religious publications in Massachusetts, and often in London as well. Jonathan Mayhew’s Discourse Concerning Unlimited Submission And Non-Resistance To The Higher Powers . . . (Boston, D. Fowle, 1750), for example, has been described by Bailyn as “the most famous sermon preached in pre-Revolutionary America—illustrat[ing] dramatically the ultimate sources of American Revolutionary thought and the distinctive emphasis imparted to them in the process of their transmission.”967 All of these controversies and their documentation merit fuller bibliographic description, but perhaps this brief mention will suffice to justify their future consideration as a part of the legal literature of colonial Massachusetts.


    A variety of publications containing the proceedings or extracts from English and American trials were printed and distributed in colonial Massachusetts. Some were criminal trials of obviously sensational interest. Others were of religious concern, and yet others clearly of political significance. The rationale for local publication in a few cases is uncertain, but the interest in most of them is fairly obvious. Here again, a full bibliography is beyond the scope of this effort, but a few illustrations may be suggestive of the genre.

    Piracy trials were of considerable popularity among the Boston printers and their readers. The ports of Massachusetts were active, and sailors, particularly prone to the temptations of that crime, were frequent visitors. The accounts appealed to readers seeking robust and often bloody adventure, and the warnings to seafarers were clear from the inevitable execution descriptions. Among these local publications were the following:968

    An Account of the Behavior and last Dying Speeches Of the Six Pirates, that were Executed on Charles River, Boston side, on Friday June 30th 1704. . . . (Boston, Nicholas Boone, 1704.)969

    The Trials Of Eight Persons Indited for Piracy etc. Of whom Two were acquitted, and the rest found Guilty. At a Justiciary Court of Admiralty Assembled and Held in Boston within His Majesty’s Province of the Massachusetts-Bay in New-England, on the 18th of October 1717. . . . (Boston, B. Green, 1718.)

    Tryals Of Thirty-Six Persons for Piracy . . . At a Court of Admiralty for Tryal of Pirates, Held at Newport . . . Rhode Island. . . . (Boston, Samuel Kneeland, 1723.)

    The tryals of sixteen persons for piracy, etc. at a Special Court of Admiralty Boston, July 4, 1726. (Boston, 1726.)

    Several other British criminal trials, covering a range of crimes, were published in Boston. A sampling includes:

    Some Account of the Trial of Samuel Goodere, for the murder of Sir John Dinely Goodere, Bart, in Bristol [England]. (Boston, 1741.)

    The Proceedings of the Court-Martial on the Trial of Admiral Byng, Held on Board His Majesty’s Ship St. George, in Portsmouth Harbour, begun December 27, 1756. . . . (Boston, Green & Russell, 1757.)

    An Authentick Account of the Proceedings Against John Wilkes, With An Abstract of the Habeas Corpus Act . . . Addressed to all hovers of Liberty. (Boston, Draper, Fleet, and Edes & Gill, 1763.)

    The Trial and defense of the Reverend John Allen, for forgery, held at Justice-Hall in the Old Bailey, on . . . January 1760. (Boston, Kneeland and Davis, 1773.)

    Publications of trial material relating to the witchcraft prosecutions and various religious controversies were numerous. Although the prosecutions occurred in Massachusetts, more accounts of these proceedings were published in London than here. The following Boston imprints indicate the activity of local presses following the witchcraft trials:970

    Deodat Lawson, A brief and true narrative of some remarkable passages relating to sundry persons afflicted by Witchcraft, at Salem village. . . . (Boston, Benjamin Harris, 1692.) Cotton Mather, The Wonders of the Invisible World. Observations As well Historical as Theological, upon the Nature, the Number, and the Operations of the Devils. . . . and the Trials of some eminent Malefactors Executed upon occasion thereof. . . . (Boston, Benjamin Harris, 1693.)971

    Increase Mather, Cases of Conscience Concerning evil Spirits Personating Men, Witchcrafts, Infallible Proofs of Guilt in such as are accused with that Crime. . . . (Boston, Benjamin Harris, 1693.)

    The suppression of religious dissenters in Massachusetts produced fewer local imprints, but the following London publications reflect some of the struggles raging here. The two Winthrop tracts relate the attacks on John Wheelwright and Anne Hutchinson which ultimately resulted in their banishment. Following that is Wheelwright’s response to Thomas Weld, who is often considered the joint author of the Winthrop tracts:

    John Winthrop, Antinomians and Familists Condemned By the Synod of Elders in New-England: With The Proceedings of the Magistrates against them, And their Apology for the same. . . . (London, Ralph Smith, 1644.)

    John Winthrop, A Short Story of the Rise, reign and ruin of the Antinomians, Familists & Libertines, that infected the Churches of New England: And how they were confuted by the Assembly of Ministers there: As also of the Magistrates Proceedings in Court against them. . . . (London, Ralph Smith, 1644.)

    John Wheelwright, Mercurius Americanus, Mr. Welds his Antitype, or, Massachusetts great Apologie examined, Being Observations upon a Paper styled, A short story of the Rise, Reign, and Ruine of Familists . . . etc. (London, 1645.)

    The trials of Samuel Gorton and Robert Child in Boston in 1646–1647 produced similar exchanges of pamphlets in London in those years. The later persecution of the Quakers in London, Massachusetts, Bermuda, and other American colonies stimulated an extensive literature from both sides.972

    A reflection of the early New England concern over slavery and interest in abolition here is to be seen in the following Boston reprint of Francis Hargrave’s argument in the landmark case of James Somerset, decided in London by Lord Mansfield:

    An argument in the Case of James Sommersett A Negro Lately Determined by the Court of King’s Bench; Wherein it is attempted to demonstrate The Present Unlawfulness of Domestic Slavery In England. . . . (Boston, E. Russell, 1774.)973

    American court reports in series did not begin until 1789. Nevertheless, well before then, certain local civil cases were published separately in Boston. One was a defamation action in 1752 brought by William Fletcher against William Vassall. The plaintiff was awarded substantial damages—£2,000.974 The other civil case reported was a commercial claim based on land investments, brought by Dr. Sylvester Gardiner against James Flagg, a merchant. The case was adjudicated by referees and then led to a series of pamphlets from 1767 to 1770.975

    More dramatic than these civil cases were two celebrated trials resulting from the growing tensions between the colonies and Great Britain: the trial of John Peter Zenger in New York976 and the trial of the British soldiers involved in the Boston Massacre.977 The Zenger trial was published in several versions, the first major account being that often attributed to Andrew Hamilton, Zenger’s counsel. It was probably extensively reworked, however, from Hamilton’s rough draft by James Alexander, who had defended Zenger in the pre-trial proceedings and was then disbarred. The first edition was published by Zenger himself in New York:

    A brief Narrative of the Case and Tryal of John Peter Zenger, Printer of the New-York Weekly Journal (New-York, Printed and sold by John Peter Zenger, 1736).

    It was reprinted in Boston by Thomas Fleet in 1738 and again in 1799.

    The trial for murder of William Wemms and the other British soldiers involved in the shooting of the Boston citizens on 5 March 1770 resulted in an acquittal, largely because of their skillful defense by John Adams and Josiah Quincy, Jr. Although the trial of the officer in charge, Captain Thomas Preston, also acquitted, was taken in shorthand and sent to England, it was not published. The Wemms trial was printed in Boston in 1770, 1807, and 1824; the first edition is as follows:

    The trial of William Wemms, James Hartigan, William McCauley, Hugh White, Matthew Kilroy, William Warren, John Carrol, and Hugh Montgomery, soldiers in His Majesty’s 29th regiment of foot, for the murder of Crispus Attucks, Samuel Gray, Samuel Maverick, James Caldwell, and Patrick Carr, on Monday-evening, the 5th of March 1770, at the Superior Court of Judicature, Court of Assize, and General Goal Delivery, held at Boston. . . . Published by permission of the Court. Taken in short-hand by John Hodgson. Boston: Printed by J. Fleming . . . 1770.

    A considerable subsidiary literature of narratives, comments, and commemoration relating to those events continued in the years following them.


    Considerable material relating to the early legal history of colonial Massachusetts can be found in the personal memoirs, diaries, and journals of individual participants. However, the most interesting of these—John Winthrop’s Journal, William Bradford’s History of the Plymouth Colony, Thomas Lechford’s Notebook, and Samuel Sewall’s Diaries—were not published until much later. During the colonial period several histories were published in London or Massachusetts which deserve mention in view of the insights they provide on various legal issues. Despite the well-known biases of their authors, we note the following works in this regard:

    Cotton Mather, Magnolia Christi Americana: Or, The Ecclesiastical History Of New-England, From Its First Planting in the Year 1620. unto the Year of our Lord, 1698. . . . (London, Thomas Parkhurst, 1702.)978

    Thomas Hutchinson, The History of the Colony of Massachusetts-Bay, From the First Settlement Thereof in 1628, Until its Incorporation With the Colony of Plimouth, Province of Main, etc. By the Charter of King William and Queen Mary, in 1691. Vols. 1 & 2. (Boston, Thomas & John Fleet, 1764–1767.)979

    Thomas Hutchinson, A Collection of Original Papers Relative to the History of the Colony of Massachusetts-Bay. (Boston, Thomas & John Fleet, 1769.)980

    Israel Mauduit, A Short View of the History of the Colony of Massachusetts Bay, With Respect to their original charter and constitution. (London, J. Wilkie, 1769.)981


    There are, of course, other types of law-related publications which have not been fully described here. The relations between the Massachusetts colonists and local tribes of native Americans produced a substantial religious literature, and also led to many publications of treaties and treaty conferences.982 In addition, an extensive pamphlet literature developed around the various legal and political issues leading up to the American Revolution. Boston was a major printing center for these publications, many of which contain sophisticated legal arguments and reflections of legal conditions in colonial Massachusetts. Fortunately these have been well described in two annotated, scholarly bibliographies by Thomas R. Adams.983 Additional sources of documentation for the study of the law of colonial Massachusetts are described in articles later in this volume.

    It is hoped that this brief survey of colonial Massachusetts publications will broaden the general view of the relevant literature of this important time and place in American legal history. Although the number of actual legal treatises was very small, the printed literature directly or indirectly related to law was substantial and richly deserves further study.