In England during the twelfth, thirteenth, and fourteenth centuries, the royal courts cast a longer and longer shadow over private and local jurisdictions. By a series of steps embracing much innovation, the custom of the king's court gradually became the common law of England, and the royal courts asserted their supremacy over other jurisdictions in many areas. Foremost among these were disputes over freehold land and cases involving felonies. It has been suggested that the royal innovations’ jurisdictional effects on private courts were “neither intended nor foreseen.” Nonetheless, they reduced private jurisdictions—with the exception of the palatinates—to constitutional insignificance during the thirteenth century. Occasional baronial objections, such as that enshrined in clause thirty-four of Magna Carta or the bluff waving of a rusty sword at a quo warranto inquest do not disguise this basic fact of English legal and constitutional history.

When Europeans first arrived, the Native American societies of North America had a variety of systems of social control and conflict mediation. These indigenous peoples were not heir to the concept of equal protection of the law derived from the Magna Carta, nor to notions of individual rights defended in the English Bill of Rights (1689) and Western Enlightenment political thought. Theirs were systems of custom and commandment of their own need and development. Therefore, after the contact period, whenever conflict arose a central issue of cultural pluralism surfaced: whose resolution system would be used when mediation was necessary.

Andrew J. Finch has taken issue in these pages with my interpretation of “clandestine” marriage in the later Middle Ages. He is certainly correct that the phenomenon of “clandestine” marriage in the high and late Middle Ages cannot be given a single explanation. As I said in the first piece that I wrote on the topic: “The cases provide evidence for the proposition that some people were genuinely confused about to whom they were married; that the Alexandrine rules were being used to defraud the innocent; and that they were being used by people to get out of marriages which had become intolerable for reasons quite unrelated to the Alexandrine rules.” And again: “while the reasons why the parties chose to marry informally rather than solemnly is in many cases obscure, there are some cases in which we may conclude that the parties chose informal marriage in order to escape pressure from their families or lords. Howard… and Homans… both suggest that the reason for informal marriage is that the Church was unable to enforce her rules on the ingrained marriage customs of the people. Turlan…, on the other hand, sees as I do informal marriage as a way of escaping both family and ecclesiastical pressure. The two views are not necessarily inconsistent. Varying motivations may have played a part in different places and times and among different individuals.”

Sometime in the winter of 1839, Keziah Kendall, a thirty-two-year-old woman living with her two sisters on a dairy farm “not many miles from Cambridge,” heard from her “milkman” that a public lecture would be delivered on the legal rights of women. Kendall “thought [she] would go and learn,” but when she attended she found that she “did not like that lecture much.” The speaker was Simon Greenleaf, Royall Professor of Law at Harvard University, who at the time was delivering lyceum lectures in eastern Massachusetts on the subject of women's rights. Not the least bit intimidated by Greenleaf's stature, Kendall wrote him a candid letter, expressing her disapproval of his talk: “[T]here was nothing in it but what every body knows. … What I wanted to know, was good reasons” for the rules governing the legal rights of women “that I cant account for. I do hope if you are ever to lecture at the Lyceum again, that you will give us some.” Kendall then proceeded to tell Professor Greenleaf the remarkable and poignant story of how her personal experiences had shaped her interest in her own legal rights.