Essays in the History of Early American Law

By David H. Flaherty

This collection of outstanding essays in the history of early American law is designed to meet the demand for a basic introduction to the literature of colonial and early United States law. Eighteen essays from historical and legal journals by outstanding authorities explore the major themes in American legal history from colonial beginnings to the early nineteenth century.

Originally published in 1969.

A UNC Press Enduring Edition -- UNC Press Enduring Editions use the latest in digital technology to make available again books from our distinguished backlist that were previously out of print. These editions are published unaltered from the original, and are presented in affordable paperback formats, bringing readers both historical and cultural value.

• Language: English
• Publisher: Omohundro Institute and UNC Press
• Release date: Jan 1, 2014
• ISBN: 9780807839898

Book preview

Part One: General Introduction

Chapter I: An Introduction to Early American Legal History

DAVID H. FLAHERTY

The outlines of the history of early American law present a number of neatly defined problems that can serve initially to establish the dimensions of the field. A significant number of Englishmen settled in a series of different colonies in the New World in the seventeenth century. The motives and background of each group of settlers varied. The new colonies were independent of one another and enjoyed varied rates of growth in all spheres. By what laws did these residents of the New World choose to be governed? How did they envision the role of law in their society? What institutions did they create for their self-government, and what legal models did they follow? How did developments differ from colony to colony? While the colonists could not escape their legal heritage, they also were given unique opportunities for innovation and deviation from the old patterns of law and law enforcement. Such considerations shape the dominant issues in the legal history of seventeenth-century America.

After the initial establishment of law and legal institutions in each colony, there followed a period of consolidation and internal development, which extended in most instances until the eve of the Revolution. Legislatures and courts responded to the novel situations and changing requirements of law in the New World. This intervening time span was also the era of fairly rapid assimilation of some of the formalities and rigidities of the English common law system. The control and influence of the imperial authorities over each colony varied considerably, thus introducing another factor making for independent and variable development of law. In the eighteenth century more English lawyers arrived, and the legal profession made its full-fledged appearance in each colony with an accompanying impact on the law. While most students are acquainted with such summary facts, little work has been accomplished to illuminate and substantiate them, with such noticeable exceptions as will be pointed out in the survey of the literature which follows.

The Revolution presented a crisis in the legal history of early America. Colonies that had always operated under the ultimate authority of the mother country in their legal development were now freed completely from any exterior controls over their laws and legal institutions. It became theoretically possible for the new states to throw off the yoke of the common law, which they had variously adapted from the mother country. Yet this did not really happen, despite initial murmurings about the desirability and feasibility of such action. Each colony took stock of its own relationship with the English common-law tradition, and through the so-called reception statutes established the extent to which the state would be formally bound by prior English legal experience.

The Revolution and the drawing up of the federal Constitution contained both starting points and elements of continuity in the history of American law. It now became possible for law to be Americanized over a couple of generations in visible fashion. The federal system introduced a completely new factor into the total picture. Anti-English sentiment stimulated a strong anti-common-law movement, accompanied by demands for codification of the laws to make them intelligible to a democratic nation. Yet by the 1830’s it became once again apparent to anyone looking backward, that the United States was very much in the common-law tradition, however great were indigenous influences on that tradition. American judges continued to cite English cases, while by the middle of the nineteenth century, some of the most important American decisions were being similarly cited and printed in the English law reports. Yet industrialization in the early nineteenth century brought in its wake a whole series of novel legal problems that stimulated the building up of a truly American law.

This sketch of the development of early American law will be fleshed out by the various articles in this volume. Each author usually suggests the exact nature of his study in relation to the central questions of American legal history. If the broad outlines of this development are kept in mind, the varied interests of each essay can be fitted into the total picture.

The goals of the following bibliographical essay are relatively simple. There is no attempt to be historiographical in approach, that is to summarize early views of certain key problems and describe how the literature on the subject has developed. A few of the articles in the volume handle this task nicely. The primary aim is to direct attention to the best interpretations and scholarly productions. The focus will be on the highlights of this literature with a studied avoidance of the less adequate books and articles. The limits of an introduction also preclude consideration of some interesting areas of legal history, such as the development of admiralty law or some of the civil liberties issues, towards which so much excellent scholarly attention has been directed.

I. THE SECONDARY LITERATURE

1. THE LEGAL HERITAGE OF THE COLONISTS

The central theme of early American legal history, the transfer of the common law from England to America, raises some fundamental problems for the legal historian concerning the scope of the English common law in the seventeenth century and the legal heritage of the first settlers in America. Even a summary examination of such topics requires a diversion to twelfth- and thirteenth-century England and the actual origins of the English common law. One cannot begin to explain or understand the state of law in America in the seventeenth century without at least a cursory knowledge of medieval legal origins. Legal historians have of course long since recognized the importance of this early period, and the medieval era has spawned the great names in the study of English legal history. Some scholars have indeed suggested that this overemphasis on pre-sixteenth-century law in research and teaching should be corrected.

While it is perhaps unrealistic to expect the historian of American law to make extensive use of William Holdsworth’s A History of English Law,¹ especially for introductory purposes, there are a number of survey works that provide a more gentle initiation into the intricacies of the English common law. The best known in terms of coverage is Plucknett’s A Concise History of the Common Law,² which has some especially good chapters on the literature of the law and enlightening topical chapters on such subjects as property and criminal law. George W. Keeton’s The Norman Conquest and the Common Law (London, 1966) and Arthur R. Hogue’s Origins of the Common Law (Bloomington, 1965) are also of value to the historian of American law. Alan Harding’s A Social History of English Law (Pelican Books, Baltimore, 1966) is a pioneering effort covering the whole field of English legal history. However, it is written and organized in such a fashion as to make for difficult reading.

The great man of English legal history, Frederic William Maitland (1850-1906), has left us several volumes which are the best initiation to English legal history in the medieval period. With Sir Frederick Pollock, Maitland was the author of the classic History of English Law before the Time of Edward I, second edition, two volumes (Cambridge, Eng., 1898; Cambridge Univ. paperback, 1968). The Constitutional History of England (Cambridge, Eng., 1908; Cambridge Univ. paperback, 1965) is a masterly survey of the course of English public and private law. The Forms of Action at Common Law (Cambridge, Eng., 1909; Cambridge Univ. paperback, 1965) is a short and intelligible account of a most complex aspect of early legal history. Maitland had an extraordinary ability to explain intricate and complicated matters. Such qualities make his work of enduring value. Instead of listing some of the specialized monographs on medieval legal history, one need only mention Bryce Lyon’s A Constitutional and Legal History of Medieval England (New York, 1960), which has thorough chapters on legal history as well as excellent notes on sources and up-to-date bibliographies.

Given the surfeit of available volumes on medieval legal history, the absence of similar studies for the sixteenth and seventeenth centuries is a major problem for students of early American legal history. Far too little is known about the state of English law, and especially English local law, in this period. The available information is much too oriented to the central courts at Westminster, which were not the dominant influence on the initial establishment of laws and legal institutions in the New World. Even Holdsworth’s detailed treatment of this era has been revised in recent years for subjects that have particular relevance to the colonies. Thomas G. Barnes’s articles on Star Chamber in the American Journal of Legal History provide a case in point.³ The only general work for this period is Charles Ogilvie’s The Kings Government and the Common Law, 1471-1641 (Oxford, 1958), which is not very relevant to the interests of students of American legal history.

The extant studies of English local law, which had such a formidable influence on colonial legal development, are particularly inadequate. Sidney and Beatrice Webb’s various studies of English local government⁴ are informative for the late seventeenth century, and there is a slight discussion of local legal history in Wallace Notestein’s The English People on the Eve of Colonization (New York, 1954; Harper Torchbook, 1962). There are volumes of English Quarter Sessions records in print, but these have not been studied with colonial interests in mind. Carl Bridenbaugh has recently demonstrated the successful employment of these English Quarter Sessions records in his study of the English people on the eve of the colonization of America.⁵ One of the first tasks of students of colonial legal history should be to make more detailed studies of the state of English law in the early seventeenth century. A leading example of the need for early American legal historians to immerse themselves in English legal history was recently provided by Leonard W. Levy’s Origins of the Fifth Amendment (New York, 1968), which is a brilliant foray into both English and American sources. Our knowledge of Sir Edward Coke is also limited, especially with respect to his influence on early American law. Catherine D. Bowen’s biography of Coke is an excellent introduction to the entire subject in a volume that includes a substantial bibliography.⁶ The scholar who attempts a perusal of Coke’s Institutes will be made aware of the need for a modern scholarly edition of this seminal work.

The interests of American legal historians have been well served in recent years by studies of the seventeenth-century movement for English law reform, which was of particular importance for the establishment of legal systems in the colonies, especially in New England. The Law Quarterly Review has published an excellent review article by G. B. Nourse on Law Reform under the Commonwealth and Protectorate.⁷ There is also a Harvard doctoral dissertation (1957) on The Issue of Law Reform in the Puritan Revolution, by Charles R. Niehaus, and a less successful study by Stuart E. Prall, The Agitation for Law Reform during the Puritan Revolution, 1640-1660 (The Hague, 1966).

Historians of early American law should undertake the stimulating experience of reading the great primary sources for English legal history, especially Glanville, Bracton, Coke, and Blackstone.⁸ One can often learn more from direct exposure to these major figures than from tedious study of secondary sources replete with the details of controversies and encounters that are of little relevance to the particular interests of American legal historians.

2. THE SEVENTEENTH CENTURY

To a degree that varied from colony to colony the settlers of America enjoyed unique opportunities for legal innovation when they left the Old World. This suggests certain basic questions for the historian of seventeenth-century American law. What kinds of laws and what type of legal establishment did the colonists seek and create for themselves in the New World? To what extent were they inspired by the freedom, the opportunity, and the salutary neglect of the British government to make new laws, to do away with the laws and legal institutions they objected to in England, and to put into effect any of their reformist instincts in the realm of law? Were the first settlers ultimately bound by the traditions of the Old World in their law-making? Did tradition overwhelm innovation in the making of laws? What regional variations affected all these questions? How did the New World alter the colonists’ conceptions of the role of law in society?

Too few historians of seventeenth-century American law have posed such questions.⁹ As a consequence only a handful of individuals have made significant contributions, and it is their work that has made this volume possible. The studies of certain others now serve primarily as grist for the mill of historiographers sifting the various ideas that have been put forward to explain the transfer of the common law from England to America. The late Zechariah Chafee, Jr., of the Harvard Law School provided the best analysis of these views in his article on Colonial Courts and the Common Law,¹⁰ which is reprinted in this volume. Chafee’s common sense and the perceptiveness of his judgments make this a very stimulating introduction to the study of early American legal history.

There are only a few general works on early American legal history. Richard B. Morris has produced a pioneering work of broad scope in his Studies in the History of American Law, second edition (New York, 1964). Professor Morris provided a unique and important introduction to the subject along with chapters on the land law, the rights of women, and the doctrines of tort law. A recent work by A. E. Dick Howard, The Road from Runnymede: Magna Carta and Constitutionalism in America (Charlottesville, Va., 1968) includes a survey of existing knowledge on the state of legal development in most of the original colonies. Francis R. Aumann’s The Changing American Legal System: Some Selected Phases (Columbus, 1940) is the only general survey of American legal history to the present century. It provides a useful introduction to many primary sources and has an extensive bibliography.¹¹While the main themes that Aumann delineates are fairly accurate and the chapters of broad scope, the study is marred by lack of organization and the degeneration of the text into peculiarities and obscurities.

For the past thirty years George L. Haskins of the University of Pennsylvania Law School has been the most prolific and effective student of New England law in the seventeenth century. His book Law and Authority in Early Massachusetts: A Study in Tradition and Design (New York, 1960) is the most successful effort to date at dealing with the central legal problems of seventeenth-century America, especially in that part of his volume which deals less with general political history and more with legal issues. Haskins was one of the first to recognize the need to study law as it was involved with and shaped by the total society. In almost a dozen articles on New England law Haskins has made a further substantial and permanent contribution from this point of view. In these articles, several of which are included in this volume, Haskins has discussed such varied topics as partible inheritance, the recording system, codification, gavelkind, and dower.¹² Few American legal historians have been so productive.

Zechariah Chafee, Jr., and Joseph H. Smith of the Columbia Law School have furthered our knowledge of New England law in the seventeenth century by two superb introductions to volumes of printed court records for Suffolk county and Western Massachusetts.¹³ These essays cover almost all aspects of the history of law in the seventeenth century, especially in terms of the structure of courts, the judiciary, criminal law, civil law, and civil procedure. Both scholars have managed to extract the meaning from the court records in a fashion that few other editors of colonial court records have matched. There is almost no parallel for the other colonies to the work of Chafee and Smith. If there is any argument to be had with these authorities, it is that their work tends to be carefully descriptive and lacking in historical analysis and generalization on a broad scale.

The history of law in colonial New York has enjoyed for many years the attentions of Julius Goebel, Jr., now professor emeritus at Columbia Law School. On the basis of his written works Goebel must be rated among the most stimulating writers of American legal history. His lifelong battle to uphold the highest standards for the study of legal history has resulted in some devastating reviews, which are recommended reading for any scholar who may become smug in his growing knowledge of this field.¹⁴ Goebel’s great work in American legal history is his Law Enforcement in Colonial New York: A Study in Criminal Procedure (1664-1776) (New York, 1944), written in collaboration with T. Raymond Naughton. This monumental study vividly illustrates the ultimate value of intensive and extensive manuscript research in early American legal history. Goebel has also published several seminal articles on both the seventeenth and eighteenth centuries, the most important being his King’s Law and Local Custom in Seventeenth Century New England, Columbia Law Review, XXXI (1931), 416-448. In this heavily documented work Goebel reminded scholars of the formative influence of English local law on the legal thinking of the first settlers. While this influence was not perhaps as overwhelming as Goebel argued on the basis of the Plymouth Colony experience, this aspect of early American law had been previously neglected, thus introducing a significant factor into the over-all picture.

Goebel’s brilliance has been most apparent in those articles where he could combine his mastery of the sources for both England and America with his gifts for survey and summary about the developing state of Anglo-American law. An early example on a fairly standard topic would be The Courts and the Law in Colonial New York.¹⁵ Two broader studies are his Introduction to Law Enforcement in Colonial New York, cited above, and "Ex Parte Clio," Columbia Law Review, LIV (1954), 450-483. Goebel is particularly critical of those interpretations of American legal history which dismiss colonial legal history as unimportant and of the general ignorance of the actual state of affairs implicit in the propagation of such views. His articles emphasize the gradual reception of the English common law in New York and the quickening pace of developments in the eighteenth century. Goebel’s generalizations are perceptive and sophisticated, but his use of the English tongue is occasionally overwhelming, for he does not fully share Maitland’s capacity to make legal history comprehensible.

The legal history of the colonial South has been seriously neglected.¹⁶ While there are a few monographs of varying quality, almost nothing of general distinction has appeared in article form. The first volume of Philip A. Bruce’s Institutional History of Virginia in the Seventeenth Century (New York, 1910) is still a useful general work on Virginia. Bruce’s familiarity with the manuscript sources for legal history has given the book an enduring quality. While there are several other volumes on more specialized topics, all suffer from the lack of more general works in the field which could synthesize the results of their investigations.¹⁷

Maryland has fortunately attracted the attention of Joseph H. Smith as one of the editors of a volume of Court Records of Prince Georges County, Maryland, 1696-1699 (Washington, 1964). While the introduction is somewhat limited in its focus, it provides an excellent survey of the legal history of Maryland, especially if used in conjunction with two recent essays by Smith on The Foundations of Law in Maryland: 1634-1715 and The Provincial Courts and the Laws of Maryland: 1675-1715.¹⁸

A major inadequacy of extant studies of the history of American law in the seventeenth century is the absence of studies that compare the colonies with the mother country and one colony with another.¹⁹ At the present time such an approach to the study of legal history would appear to have great possibilities. Such undertakings may well do away with the traditional lament about having to study thirteen separate jurisdictions, for in colony after colony the historian is often much more impressed with the similarities than the differences. The distinctions between colonies exist, of course, but even they have not been explained or described except in the broadest terms. The uniqueness of the New England Puritans’ reforms of English law can be questioned, for example, once one has examined the legal records of seventeenth-century Virginia.

The emphasis on differences in early American law has also tended to play down the traditional element and the continuities between English and American law. What kinds of restraints restricted the colonist’s freedom to innovate in the legal sphere? The answers to this and the myriad other questions that could be asked may not be sophisticated or far removed from the probing talents of the scholar, yet the fact remains that little of this kind of work has even been attempted. The field is not barren, as this cursory survey has indicated, yet it has not yielded a bountiful harvest.

3. 1690–1776

In the seventeenth century the colonists had struggled with the establishment of English law in the New World. After 1689 the most difficult problems that the historian must confront arise from indigenous developments. To what extent did the experience of life in America influence changes in the law? What regional variations developed within the American colonies? What was the impact of fluctuating imperial control on the evolution of American law? Such questions assume that law was not static, but constantly changing and subject to alteration. As aids in seeking out their answers, there are only a handful of significant secondary works.

With respect to the development of law in pre-Revolutionary America, we have already mentioned several especially important survey articles by Julius Goebel, Jr. There is also an informative article by Charles McLean Andrews entitled The Influence of Colonial Conditions as Illustrated in the Connecticut Intestacy Law.²⁰ Much broader in scope than the title implies, this article is one of the best studies to date of any aspect of American law around 1700. John M. Murrin of Washington University of St. Louis has recently completed an excellent doctoral dissertation, which has some particularly relevant chapters on the evolution of colonial law, the courts, and the legal profession. His work is entitled Anglicizing an American Colony: The Transformation of Provincial Massachusetts (Yale University, 1966). While one can quarrel with Murrin’s thesis about Anglicization, the research involved in his chapters on legal history between 1690 and 1776 is extremely detailed and sound. Duplication of his work for other colonies should prove fruitful.

The reassertion of royal control over colonial legal developments in the late seventeenth century presents legal historians with another significant theme. Joseph H. Smith has made this area his special domain in two important works. His Appeals to the Privy Council from the American Plantations (New York, 1950) is a monumental study in the tradition of Goebel and Naughton’s Law Enforcement in Colonial New York. The problem presented by such comprehensive and detailed studies is that they almost defy assimilation except by the most ardent student. These works, therefore, stand unchallenged and indeed almost unread. Because of the scope and centrality of Smith’s subject, his Appeals to the Privy Council is one of a handful of books of general importance for the history of early American law. In a learned, careful, albeit difficult fashion, Smith grapples with some of the key issues. He has developed a further aspect of this imperial problem in his article on Administrative Control of the Courts of the American Plantations, Columbia Law Review, LXI (1961), 1210-1253.

The development of the legal profession in early America has attracted the attention of a number of legal historians. Charles Warren’s A History of the American Bar (Boston, 1913) is the most frequently cited work. The continued popularity of this path-breaking volume is discouraging, because it contains many factual errors and inadequacies in interpretation. Yet the coverage of primary sources, particularly in the post-1789 period, is encyclopedic and the work provides a valuable introduction. Warren (1868-1954) was not very critical and did not pose such central questions as why, for example, a legal profession did not develop until the eighteenth century. One would expect a scholar writing fifty years later, however, to be much more sophisticated and perceptive in his broad analysis of the problems. This description, unfortunately, does not match Anton H. Chroust’s The Rise of the Legal Profession in America, two volumes (Norman, Okla., 1965), despite the author’s substantial knowledge of some primary and most of the secondary sources.²¹ The series of weak generalizations and misstatements in his first volume on The Colonial Experience should not have appeared in print. However, in his second volume beginning with the post-Revolutionary period the author’s reliance on printed primary and secondary sources has not led him so far astray. Paul Hamlin’s Legal Education in Colonial New York (New York, 1939) was a much more successful study than either of the above despite its fairly limited scope. The author’s liberal use of primary sources and extensive appendixes are of genuine value for an understanding of the subject. Once again, this topic has not received similar treatment for other colonies.

The editors of the Legal Papers of John Adams (Cambridge, Mass., 1965; Atheneum paperbacks, New York, 1968), L. Kinvin Wroth and Hiller B. Zobel, have provided legal historians with perhaps the best study to date of the colonial lawyer in their Introduction to the three volumes. Coupled with two other important articles, such works do much to remedy the deficiencies of Warren and Chroust. Clement Eaton has written A Mirror of the Southern Colonial Lawyer, which discusses Patrick Henry, Thomas Jefferson, and Waightstill Avery in their legal capacities. Milton M. Klein has published a similar article of high quality on The Rise of the New York Bar: The Legal Career of William Livingston.²² Eaton and Klein carry their subjects chronologically to the eve of the Revolution and center attention upon the important question of the role of lawyers in the coming of the Revolution. The problem was best posed by Richard B. Morris in his Legalism versus Revolutionary Doctrine in New England, New England Quarterly, IV (1931), 195-215. In an article on The Lawyer and the Revolution, Erwin C. Surrency, editor of The American Journal of Legal History, has summarized our current knowledge of this topic while concentrating on the attitude of lawyers towards the Stamp Act.²³

Nevertheless there remains both opportunity and need for the study of the role that lawyers played in the American Revolution. The definitive works have not yet appeared. In an age of quantification it should be noted that no scholar has kept track of every lawyer in each colony, of his activities before and during the Revolution, and which side individual lawyers chose, although a satisfactory beginning was made by Frank B. Ward in a Princeton University senior thesis (1966) entitled The American Revolution and the Legal Profession in New Jersey, 1740-1799. Curiously enough the role of law and of legal conceptions in the coming of the Revolution has similarly been little studied. There are a few suggestive articles such as those by R. A. Humphreys on The Rule of Law and the American Revolution and Charles F. Mullett, Coke and the American Revolution,²⁴ while Mullett has produced a catalogue of Revolutionary thinking on fundamental law in his Fundamental Law and the American Revolution, 1760-1776 (New York, 1933; reprinted in 1966).

4. 1776–1830

The successful culmination of the Revolution had important legal implications as ultimate control over colonial laws was transferred from Westminster and London to thirteen independent states. By what laws would the various jurisdictions now choose to be governed? Would there be a wholesale rejection of the English common-law tradition? What aspects of this common-law tradition would be recognized and accepted in America? The development of an American law which had begun with the first settlements could now proceed unhindered.

Roscoe Pound (1870-1964), the famous scholar and dean of the Harvard Law School, entitled his work on the period in legal history from the Revolution to the Civil War The Formative Era of American Law (Boston, 1938). Although this particular volume is more a work of jurisprudence than of legal history, Pound’s overriding thesis has had a significant influence on the interpretation of the period. The major inadequacy is Pound’s notion that colonial law was simple and unsophisticated to suit the society. According to this view the chief developments in American law are post-Revolutionary. As Julius Goebel, Jr., has taken pains to show,²⁵ such an interpretation bears little relation to the facts of the matter and contributes greatly to the neglect of colonial legal history.

At the most general level of post-Revolutionary search for an American law, legal historians have been stimulated by Perry Miller’s The Life of the Mind in America, from the Revolution to the Civil War (New York, 1965), which devotes a major section to legal developments. This volume has even greater value if used in conjunction with a paperback collection of primary sources edited by Miller (1905-1964) under the title The Legal Mind in America: From Independence to the Civil War (Anchor Books, Garden City, N.Y., 1962). These documents are really the sources that Miller is interpreting in his later volume. Although Miller treats legal history primarily as an exercise in intellectual history, his contributions are important. A penetrating review essay by Lawrence M. Friedman, Heart against Head: Perry Miller and the Legal Mind, Yale Law Journal, LXXVII (1968), 1244-1259, makes a strong case against Miller from the point of view of the need to study law in the context of society.

A detailed study by Elizabeth G. Brown, British Statutes in American Law, 1776-1836 (Ann Arbor, 1964), constitutes the most satisfactory examination to date of the whole question of the reception statutes and the attempts made to determine what the laws were in each jurisdiction, and especially which English statutes were part of the common law that had already been brought over to America. Mark De Wolf e Howe of the Harvard Law School wrote an informative case study of the reception of English law that is a model of its kind.²⁶ Zechariah Chafee, Jr., used the occasion of a review of Daniel Boorstin’s edition of Delaware Cases to investigate the state of law in the courts of late eighteenth-century Delaware and to point the way toward broader generalizations and interpretations.²⁷

Sir William Blackstone (1723-1780) was one of the greatest influences on the development of American law from the date of the publication of his Commentaries in the late 1760’s, and the numerous books and articles on Blackstone are of much importance to the student of legal history. Daniel J. Boorstin presented Blackstone against the intellectual background of his time in The Mysterious Science of the Law (Cambridge, Mass., 1941; Beacon Press, Boston, 1958). The standard biography by David A. Lockmiller, Sir William Blackstone (Chapel Hill, 1938), includes a well-constructed chapter on Blackstone in America. Walton Hamilton has indicated some of the inadequacies of this and other biographies of Blackstone in a review article, The Law and Mr. Blackstone, Columbia Law Review, XXXIX (1939), 724-741. The most important article on Blackstone from the point of view of American legal history is Julius S. Waterman’s Thomas Jefferson and Blackstone’s Commentaries, Illinois Law Review, XXVII (1933), 629-659, an excellent summary of the problems presented by Blackstone and his great influence on American law.

While this survey is not concerned with the development of law on the federal level after 1789, the neglected opportunities to study legal history on the state level deserve passing attention, particularly those which could appear in the format of studies of individual justices and famous lawyers. Leonard Levy of Brandeis provided an excellent model for such undertakings in his biography of Chief Justice Lemuel Shaw of Massachusetts: The Law of the Commonwealth and Chief Justice Shaw, The Evolution of American Law, 1830-1860 (Cambridge, Mass., 1957; Harper Torchbook, New York, 1967). Studies should be undertaken of such important figures as Nathan Dane, Zephaniah Swift, Nathaniel Chipman, and even James Kent.²⁸

The tremendous increase in contemporary writings on American law which were published after the Revolution makes the study of legal history for that period less dependent on secondary literature. It is fairly easy to return to the printed primary sources and draw one’s own conclusions. Still there are several articles that have appeared in recent years which smooth the path for the scholar. William E. Nelson made an ambitious attempt to study changes in one area of substantive law in this period in his Emerging Notions of Modern Criminal Law in the Revolutionary Era: An Historical Perspective, New York University Law Review, XLII (1967) 450-482. Maxwell Bloomfield’s William Sampson and the Codifiers: The Roots of American Legal Reform, 1820-1830, is an excellent survey of the attacks on the common-law tradition and the movement for codification.²⁹ Gary B. Nash has written an important study of the changing social characteristics of the legal profession in the first half of the nineteenth century.³⁰

No survey touching on nineteenth-century American legal history can afford to overlook the work of James Willard Hurst of the Wisconsin Law School, who has created an entirely new school of legal historians by taking a very broad approach.³¹ Hurst’s efforts to discover the principles underlying prevailing statutes and common-law decisions, especially in the formulation of law by legislatures, make plain a neglected area of earlier American legal history.

II. THE PRIMARY SOURCES

1. GENERAL

One of the consequences of the lack of detailed research in many areas of early American legal history is that the scholar has an even greater obligation than usual to do primary research on a vast assortment of topics—this, over and above the usual need for the legal historian to delve into a massive array of sources. Attention will now be focused on some of the most significant general sources available for the history of early American law.³² Although almost every diarist, traveler, and chronicler said something about law, few delved deeply enough to be worthy of specific mention. The focus will continue to be upon rich sources or sources that have been seriously neglected. Fortunately several recent innovations and publications have made the legal historian’s task considerably simpler. Chief among these is Clifford K. Shipton’s microprint edition of Early American Imprints, 1639-1800, which provides a copy of every work printed in America before 1800, a collection especially useful for the eighteenth century.

There is only one general volume that contains primary sources for the entire history of early American law, Mark DeWolfe Howe’s Readings in American Legal History (Cambridge, Mass., 1949). While it is not a volume for the beginner, and shares some of the weaknesses of most attempts to create legal history case books, this is by far the leading product of law school courses on American legal history.³³ Unfortunately the book is out of print, and copies are almost unobtainable.

For the seventeenth century there are four sources of a general nature that deserve the particular attention of the legal historian. John Winthrop’s Journal³⁴ is especially central to the evolution of law in Massachusetts Bay Colony during the first two decades, when Winthrop’s hand was at the helm. Winthrop had received some legal training, had served as a justice of the peace in his county in England, and had practiced as a lawyer in a Westminster court in the years before coming to America. His ideas on law are of much importance. Similarly the observations by Thomas Lechford of Massachusetts during his brief sojourn there as a lawyer deserve our attention.³⁵ One of the best and most neglected legal history sources for the seventeenth century is a tract written in the 1690’s by Gershom Bulkeley, a Harvard educated minister who had turned to the practice of law in Connecticut after 1676.³⁶ His Will and Doom reveals a royalist bias and his preference for English common law rather than the law of Connecticut. The one significant southern source of this kind is a presentation made to the Board of Trade in 1697 by three Virginia royal officials, two of whom were among the leading lawyers of their day. The authors, Henry Hartwell, James Blair, and Edward Chilton, provided the home government with a thorough survey of the legal system and institutions of Virginia.³⁷

For the study of eighteenth-century legal history, printed primary sources of every type are more readily available. An Essay upon the Government of the English Plantations on the Continent of America, written by an anonymous Virginian in 1701, contains some excellent information for the legal historian.³⁸ Another important work is The Rights of the Inhabitants of Maryland to the Benefit of the English Laws by Daniel Dulany, Sr., first printed at Annapolis in 1728.³⁹

A unique source for the eighteenth century is Charles McLean Andrews’ edition of Francis Fane’s Reports on the Laws of Connecticut (New Haven, 1915). Fane was legal counsel to the Board of Trade and from 1733 on prepared annual reports containing his evaluations of the legality and acceptability of certain colonial laws. These opinions of an English lawyer on colonial laws are of great value. Another relatively unused source collection is The Talcott Papers, two volumes of documents and correspondence dating from the Connecticut governorship of Joseph Talcott, 1724-1741, and containing the record of important as well as famous litigation.⁴⁰ A superb new edition of James Alexander’s A Brief Narrative of the Case and Trial of John Peter Zenger (Cambridge, Mass., 1963) has recently appeared, edited with an excellent introduction by Stanley N. Katz. The Zenger trial is more celebrated than important, yet this new edition, also available in paperback, should make its mark as a reading assignment in legal history courses.

The current publication programs of the papers of the Founding Fathers have had some direct benefits for the historian of early American law.⁴¹ While Jefferson’s legal papers will eventually be published as a separate series of The Papers of Thomas Jefferson, edited by Julian P. Boyd, the main volumes contain pertinent material. Professor Morris’ promised edition of the Jay papers should be revealing of this distinguished legal career.⁴² In two other cases rewarding volumes have already appeared. L. Kinvin Wroth and Hiller B. Zobel have brilliantly edited The Legal Papers of John Adams in three volumes (Cambridge, Mass., 1965). Their work is one of the most significant contributions to American legal history in recent years. The Diary and Autobiography of John Adams for the period before the Revolution when Adams practiced law is also informative on the making of a career at the law in early America.⁴³ Alexander Hamilton’s legal career has begun to receive more attention since the appearance of the first volume of The Law Practice of Alexander Hamilton (New York, 1964), under the distinguished editorship of Julius Goebel, Jr. The topical arrangement of cases, prefaced by an introduction to each group, is of particular value in the study of substantive law.

In both seventeenth- and eighteenth-century America many judges were not formally trained in the law, and until the early eighteenth century these lay judges were often dependent on the innumerable editions of such justice of the peace handbooks as those of Dalton and Lambarde.⁴⁴ The historian of early American law received a great boon when such handbooks for judges began to be written in America, beginning in Philadelphia in 1722 with the appearance of an anonymous volume entitled The Conductor Generalis: or, the Office, Duty and Authority of Justices Of the Peace. A second enlarged edition was published in Philadelphia and also in New York in 1749. In Virginia in 1736 George Webb published his The Office and Authority of a Justice of the Peace. Such books normally included an alphabetical discussion of all the powers and duties of justices of the peace, a collection of legal forms, and directions for the conduct of judicial proceedings. The duties of minor officials were also normally included. These volumes are of almost matchless importance for the legal historian, yet they have rarely been studied and assimilated. When it is noted that a person like George Webb was a practicing justice of the peace in New Kent County, the importance of his comments and generalizations for an understanding of Virginia law is readily apparent. The indebtedness of one American author to another in these handbooks has not been studied nor has the manner in which their works differed from one another and from their English predecessors been examined. Before the Revolution justice of the peace handbooks had also been published in North Carolina, South Carolina, and New Jersey.⁴⁵

Sir William Blackstone’s Commentaries on the Laws of England were published in four volumes at Oxford from 1765-1769 and in a first American edition at Philadelphia in 1771-1772. The Commentaries immediately became the basic text for the training of American lawyers and retained this dominant position well into the nineteenth century, necessitating innumerable American editions of the work.⁴⁶ Attempts to Americanize Blackstone were a significant aspect of this enthusiasm. The most important and earliest such effort was Tucker’s Blackstone, edited and indeed almost co-authored, by St. George Tucker (1752-1827), a prominent Virginia judge and professor of law at The College of William and Mary.⁴⁷ This is one of the truly great sources for American legal history. Tucker grappled with many of the central problems of American law in the appendixes of each volume, which he described as short tracts upon such subjects as appeared necessary to form a connected View of the Laws of Virginia as a member of the federal union. In the five separate volumes these appendixes on a diversity of topics totaled approximately eight hundred pages. An even more drastic reorganization of Blackstone appeared in 1831 when Judge John Reed of the Pennsylvania Court of Common Pleas published his Pennsylvania Blackstone.⁴⁸

Independence from Great Britain necessitated the publication of American law reports, if the common-law tradition was to be gradually Americanized. Judges’ opinions in superior court cases began to be written and kept on file in Connecticut in the mid-1780’s, leading to the publication of the first volume of American reports by Ephraim Kirby in 1789.⁴⁹ The whole subject has never been seriously studied. Why were opinions not written and filed in the colonial period? Under what circumstances did Connecticut take the lead? How had cases been decided in relationship to one another at an earlier period? Why were other states collectively slow to imitate the Connecticut practice? These are but a few of the obvious questions that deserve examination.⁵⁰ The second American reporter was Alexander J. Dallas of Pennsylvania, who began publishing in 1790.⁵¹ Two other reporters, Judge Nathaniel Chipman of Vermont and Judge Jesse Root of Connecticut, included in their volumes much more than the simple reports of cases.⁵² Chipman added Dissertations on the Statute adopting the Common Law of England, the Statute of Conveyances … and an appendix containing forms of special pleadings in several cases. Judge Root prefaced his two volumes with some significant observations upon the Government and Laws of Connecticut.

Independence also touched off a flood of important legal treatises that rapidly created a library on American law. In 1801, for example, the attorney general of Massachusetts, James Sullivan, published The History of Land Titles in Massachusetts (Boston), which was the first comprehensive work on real estate law in this country. In 1804 a three-volume edition of The Works of James Wilson appeared in Philadelphia. Wilson, in addition to being an associate justice of the United States Supreme Court, was one of the first law professors in this country. His Works, which have just been republished in the John Harvard Library, include his lectures on law delivered in 1790 and 1791.⁵³

The post-Revolutionary attacks on the English common-law tradition and the alternative recommendations for codification can be initially viewed to great advantage in the work of Joseph Hopkinson and William Sampson.⁵⁴ Hopkinson was a supporter of the common law and attempted to demonstrate the absurdity of projects to abolish it. The much more colorful William Sampson, a successful New York lawyer and Irish emigré, was the most famous opponent of the common-law tradition and in his day a leading exponent of codification as the viable antidote.

In the 1820’s massive compilations of American law made their first appearance, beginning with Nathan Dane’s General Abridgmentand Digest of American Law, with Occasional Notes and Comments, nine volumes (Boston, 1823-1829). Dane’s work was soon overshadowed by the publication of James Kent’s Commentaries on American Law, four volumes (New York, 1826-1830). Kent has since been known as the American Blackstone. His massive judicial experience permeated the pages of the text. Modeled after Blackstone’s own mode of presentation, Kent’s Commentaries provide a thorough survey of American law as it had developed by this crucial period. In one sense Kent marked a culmination, in other ways only a beginning, because after him the publication of new treatises on American law assumed landslide proportions. One need only recall Judge Joseph Story’s many publications in the 1830’s and 1840’s as he combined his Supreme Court duties with those of professor at the new Harvard Law School.⁵⁵ With Kent and Story, American law had truly come into its own.

For those perhaps awed by the prospect of initially grappling with Kent and Story, an excellent introductory text of the 1830’s should smooth the path. Timothy Walker’s Introduction to American Law was the fruit of his labors at a law school he had founded in Cincinnati after graduating from Harvard Law School.⁵⁶ There is also a collection of well-edited source materials covering the period from 1820 to 1860, Charles M. Haar’s The Golden Age of American Law (New York, 1960), which carries the study of early American legal history into this later period.

2. THE LAWS

Some of the most obvious, reliable, and readily available information about the state of law in early America can be obtained from the successive printed collections of statutes in each of the thirteen colonies. Examining the printed statutes of a particular colony is usually the first step in primary research in American legal history. For such colonies as Pennsylvania and Virginia, where the secondary literature for legal history is inadequate, reading their respective statutes is the essential first task of the legal historian.

Each of the original colonies compiled simple collections of its statutes at various times. Many circulated in manuscript form prior to publication. At some point, however, every colony did publish its laws, and these publications are readily available today in one of several formats. The major research libraries have copies of many original editions of the laws. The Early American Imprints Series, edited by Clifford K. Shipton, makes available in microprint every legal code published in this country between 1639 and 1800. Finally several of the most famous seventeenth-century collections of laws were reprinted in the nineteenth and twentieth centuries. These collections of statutes have rarely been used for the study of even the most elementary problems in legal history. There has been almost no attempt either to compare the laws of one colony with another or to study the evolution of colonial laws. Such an important subject as the revision of colonial laws has only recently received preliminary consideration.⁵⁷

The fame of most seventeenth-century law codes has been such that locating copies of them is not a difficult problem. By the eighteenth century legislatures were printing their sessions laws on a regular basis and major collections of statutes appeared fairly frequently. The easiest way to discover what laws were printed in such instances is to use the indexes of Charles Evans’ American Bibliography, twelve volumes (Chicago, 1903-1934). The Greene and Morris Guide to the Principal Sources for Early American History (1600-1800) in the City of New York lists some of the printed sources on each colony which appeared in print before 1930.⁵⁸ Bibliographies of the laws of several New England colonies have been published.⁵⁹ The greatest single collection of colonial laws in print is The Charlemagne Tower Collection of American Colonial Laws at the Historical Society of Pennsylvania. The catalogue to this collection can serve as a handy guide to most printed editions.⁶⁰

Brief notice of some of the most famous printings or subsequent editions of colonial laws may facilitate the task of students. The most important law code in colonial America was the Massachusetts Code of 1648, which was rediscovered and reprinted in the twentieth century.⁶¹ In the late 1880’s William H. Whitmore edited reprintings of the Massachusetts collections of 1660 and 1672.⁶² The Massachusetts laws from 1692 to 1780 can be found in the first five volumes of The Acts and Resolves, Public and Private of the Province of the Massachusetts Bay. …⁶³The Colonial Laws of New York from the year 1664 to the Revolution were published in five volumes at Albany in 1894. The colonial statutes of Pennsylvania were republished in the late nineteenth century.⁶⁴ One of the best and most satisfactory editions of colonial laws is William W. Hening’s compilation of The Statutes-at-Large, Being a Collection of All the Laws of Virginia, 1619-1792, thirteen volumes (Philadelphia and New York, 1823). The University Press of Virginia has just published a new edition of the first laws drawn up for an American colony, William Strachey’s For the Colony in Virgínea Britannia. Lawes Divine, Morali and Martiall (London, 1612; Charlottesville, Va., 1969).

3. THE COURT RECORDS

Court records constitute the major unused source for the study of both early American history in general and the history of law. This is especially true for the innumerable volumes of manuscripts that are extant for each of the original colonies. This condition reflects the difficulties inherent in both locating manuscript court records and in determining how to utilize them intelligently. The bibliographical guides to some court records which have recently appeared should facilitate their use by future scholars. Mention should be made of Michael G. Kammen’s Colonial Court Records and the Study of Early American History: A Bibliographical Review, William Jeffrey, Jr.’s Early New England Court Records, a Bibliography of Published Materials, and my own Select Guide to the Manuscript Court Records of Colonial New England.⁶⁵ A guide comparable to these has also been prepared for Maryland.⁶⁶ One of the first tasks of legal historians should be the preparation of brief guides to the court records of the Middle and Southern colonies.

Editing and publishing selected court records has absorbed the attention of a variety of persons interested in early American law. Since 1933 nine volumes of court records have been published in the American Legal Records series.⁶⁷ Other important publications have appeared under the sponsorship of a variety of organizations with the result that certain colonies and states have been much better served than others. Maine, Massachusetts, New York, and Maryland enjoy many printed volumes of their court records, while the opposite holds true for such important colonies as Pennsylvania, Virginia, and South Carolina. All of the Maine court records to 1718 have now been published in a series that features excellent scholarly introductions to the various volumes, and has the important virtue of continuity.⁶⁸ For seventeenth-century Massachusetts the records of the Court of Assistants, Essex County, Suffolk County, and more recently the local judicial records of the Pynchon family, are available and well known to legal historians. This is not true for eighteenth-century Massachusetts, however. The huge Archives of Maryland series has published innumerable volumes of court records for that colony. Professor Joseph H. Smith of Columbia, the most successful recent editor of court records, has just added a volume for Maryland.⁶⁹ Richard B. Morris has been perhaps the most innovative of editors in his Select Cases of the Mayor’s Court of New York City, 1674-1784 (Washington, 1935). Instead of printing the records in sequence as they originally appeared, Morris has organized selected cases in topical fashion to cover many areas of general interest. Paul M. Hamlin and Charles E. Baker have edited an excellent collection of records for the Supreme Court of Judicature of the Province of New York, 1691-1704, three volumes (New York, 1959).

Given the current underdeveloped state of American legal history, one may argue that there has been too much emphasis on the editing of court records for publication. Whether the editing of such records should remain a major outlet for the energies of legal historians is an important question. A great deal of the editing has been much too scattered both regionally and along jurisdictional lines to be of great value. The American Legal Records series, for example, contains a miscellany of records from eight different colonies, including inferior court records, superior court records, and records of courts of appeals, admiralty, and equity.⁷⁰ Many of these volumes lack adequate introductions. For a collection of records of one particular court over a short span of time to make a significant contribution, the volume requires a lengthy introduction that might be profitably modeled after those of Zechariah Chafee, Jr., and Joseph H. Smith, for example. Instead of editing one volume of county court records that span a decade, the legal historian might be better advised to employ all the manuscript records of the county in an extensive monograph. Surely the editing of court records should not cease completely, but at least for the moment it is to be hoped that mature scholars will shun this outlet for their energies in favor of some of the more pressing needs of early American legal history.

Legal historians must make greater use of the manuscript court records. Too many articles and monographs on legal history fail to cite a single manuscript court record. Such sources should be studied intensively and over a considerable period of time in order that the scholar might be able, for example, to integrate file papers with the sparse notations of the court record book. Scholars can develop methods for utilizing court records effectively and should encourage plans to make the manuscripts themselves more accessible. Connecticut has provided a model of sensible procedure by centralizing its colonial court records in the State Library at Hartford, unlike Massachusetts and Rhode Island where the scholar must still make the rounds of colonial county seats. The Virginia State Library in Richmond will make available on microfilm specified colonial Virginia court records. Centralization of collection and the microfilming of court records should be championed by legal historians. One can easily belabor the need to study and utilize the court records. Yet the opportunities and sources are so great as to make this danger a negligible one, for the fact remains that few court records have ever been employed in analytical and general studies. Quantifying methods can now be used to great advantage, and there is no reason for such records to remain the preserve of the geneaologist or the individual searching for a case involving specific persons.

III. SOME CONCLUSIONS

Early American legal history has been singularly fortunate in attracting the attention of a series of important scholars, and some very significant and permanently useful work has appeared. Yet too much of our legal history to date has been repetitive or superficial. With notable exceptions, we have not gotten to the heart of the matter in the study of legal history. Too little has been done to integrate legal history with the general history of early America, especially by asking broadly significant questions. The result has been that in the past the works of legal historians seem mainly to have been read by one another. The general scholar, and even the graduate student, has tended to leave legal history works in their arcane corner.

A moment’s reflection should convince anyone, however, that the many basic questions involved in the study of early American law can also be of great importance for early American history in general. The history of the role of law in early American society can and should be a central theme, since law is so often at the heart of the functioning of a society. By asking the right questions legal history can introduce the scholar to the deepest workings of society as revealed at the most practical level. Enlightened legal historians can draw upon the resources of political, social, economic, and intellectual history to produce working models of the functioning of society at a given period in time. Such undertakings can evolve broad interpretations and at the same time result in concrete studies. Legal history can thus serve as the focal point for understanding a society—it can be the composite form of historical comprehension in a multidimensional fashion.

One must begin the study of legal history by posing the right kinds of questions. For what apparent or underlying reasons were certain legislative acts enacted? How did these statutes reflect the basic values of the society? To what extent did legislatures abandon control to the forces of inertia in a particular area? On what broad principles were cases being decided in the courts? Did the laws and the judicial decisions reflect the dominant forces at work in the society? To what extent did these new laws or decisions reflect changes in a developing society? Such crucial questions overlap many areas of historical specialization and an up-to-date legal history can integrate them into a coherent whole. If the tasks of legal history are construed broadly enough and the correct questions posed, the history of American law can be a major area of historical investigation and contribute substantially to an understanding of the history of an era.

In this process there are certain characteristics of earlier studies that it would be well to de-emphasize. The history of early American law has been too concerned with origins and with institutional studies. While these are important matters, they need not constitute the boundaries of legal history to the detriment of more broadly conceived studies. Professor Stanley N. Katz has recently criticized the traditional character of even the more recent work in American legal history, which has continued to abide by old-fashioned notions about periodization and has focused on a limited range of source materials.⁷¹ Katz emphasized the need to study law broadly and to turn our concern from what law was to how law worked.

Another of the limiting postulates of American legal history to date has been that generalization is difficult or impossible because of the need to study and consider each jurisdiction separately. Scholars have been so busy studying individual colonies that they have not taken cognizance of the enormous similarities in all aspects of law in the British colonies. As one studies colony after colony the dominant impression is not one of differences but of similarities. The significant deviations readily stand out. While most studies should initially begin in one jurisdiction—and the legal history of each colony might well be studied separately, especially in the format of doctoral dissertations—such difficulties should no longer be invoked as an almost sacrosanct ban on presentation of the legal history of early America from a general point of view. Indeed such a ban has constituted a major hindrance to the development of legal history, since it has made it difficult for prospective scholars to find their way into the field.

The technical nature of the law has been another major stumbling block to advances in the study of legal history. A degree of formal or informal legal training is certainly essential for serious work in the field, and the guild of lawyers has tended to reflect unkindly on those who attempted to study the history of law without prior immersion in the mysteries of the sect. At the same time the field of legal history has often been studied and defined much too narrowly by the specially trained and dominant professional group. Thus certain misconceptions need to be cleared away.

As Maitland pointed out in the late nineteenth century, legal history is history and not law.⁷² The normal aims of the historian and the lawyer are totally different.