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Book Review
Christopher L. Tomlins and Bruce H. Mann, eds., The Many Legalities of Early America, Chapel Hill: University of North Carolina Press, 2001. Pp. ix + 466. $59.95, cloth (ISBN 0–8078–2632–4); $22.50, paper (ISBN 0-8078-4964-2).
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Legal history was once about law and just the law. Searching for the historical roots of the law led many scholars to early American and English history. But as Bruce Mann writes in the "Afterword" to this collection of original essays, the "new" legal history, with its concern for the interaction of law and economics, broke free of the "law-box" (443). These historians, many bluntly ideological in their approach, had little interest in early America; their world was about industrialization and its impact on the law. The Many Legalities of Early America represents the displacement of the new legal history with cultural legal history, as historians cease reifying law and place it firmly within the networks of its host society and historical development. |
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It should be immediately noted that Mann provides what for some readers may be a crippling criticism of this collection in noting that the authors' "engagement with law is more incidental than central" (444). Many readers may find these essays more cultural than legal studies, especially as the "law itself holds only secondary interest" for these authors (445). Nonetheless, Many Legalities struggles with the crucial interaction of law and culture while offering fresh and provocative insights to colonial North America. |
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Several essays build on traditional methods of legal history. For instance the first four essays grapple with some of the big issues in American legal history with a careful consideration of the common law and canon law roots of colonial law. James Muldoon examines the justifications for European possession of American lands and John Adams's questioning of English claims to legitimacy. For Adams, the acceptance of British authority was a choice, one that could be rescinded. Mary Sarah Bilder shows one reason why this authority had been accepted in a brilliant study of a "culture of appeal" that reveals a great deal about the social expectations of the colonists as well as their knowledge of English common law. "The New England colonists knew that the culture of appeal carried with it the belief that justice lay in a series of hierarchically arranged superior powers" (69). In David Gaspar's useful narrative, Jamaica's slave laws, while the product of the English heritage, are found to respond to local conditions in the late seventeenth century. But even as they changed, these local structures continued to base legitimacy on British precedent. David Thomas Konig traces the contest between common law and legislation, with special attention to Thomas Jefferson's attack upon the legal fictions of the former. But even Jefferson needed his fictions, for "[h]istorically, the rule of law has depended on fictions to maintain political authority and stability" (100), whether in England or America. |
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The second part of the book on "Intercultural Encounters" provides positive evidence that the new forms of cultural legal studies can attain solid scholarly results. John Phillip Reid in a remarkable recent book, Pattern of Vengeance (1999), ably argues that Indians had autonomous legal systems, though white Americans often failed to perceive those legal structures for not being written. The three essays by Katherine Hermes, James Brooks, and Ann Marie Plane do an outstanding job extracting those legal understandings by examining specific interactions between Indian and European law. In a sympathetic and well-written essay, Hermes demonstrates the ways in which Europeans and Algonquins used the law to accommodate and mediate differences. Though these cases came in the aftermath of the brutality of Philip's War, a working reciprocity is attained. Similarly, Brooks does a fine job examining the law as mediator of cultural distinctions in colonial New Mexico. Plane traces a fascinating case in which the Rhode Island courts worked hard to grant due value to native customary law. Almost as a tribute to Roger Williams, the Rhode Island authorities sincerely sought to unravel the customs of the Narragansett, which is in itself an interesting finding. All three of these essays are surprising in their claims for the success of customary law: these native people were not hopeless victims; the Europeans not all ruthless tyrants. |
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Equally surprising is Christine Daniels's study of petitions by indentured servants in colonial Maryland. Where Edmund Morgan put forth a hierarchical legal and political structure that did all it could to deny the most basic rights to indentured servants, Daniels posits instead a court system that acted to protect the interests of the powerless. The courts had the power to negotiate and define "the limits of the institution" of indentured servitude (248). |
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The significance of these essays can be but briefly stated here. In an examination of the power of attorney, Linda Sturtz offers an elegant essay that evidences the ways in which women often took the economic lead in their families. John Kolp and Terri Snyder present a fascinating argument, that women created voters by settling land upon male family members. In a compelling reading of the legal incompetence of children, Holly Brewer formulates the legal creation of childhood. Cornelia Dayton draws our attention to New Haven's radical experiment in "godly living" to get a better understanding of gender relations in legal practice. By focusing on charity law, A. G. Roeber explores the tension between religious purposes and liberal individualism. |
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The Many Legalities of Early America is an important contribution to legal history, marking a maturing of the scholarship as it directs our attention to a number of interesting new areas of research. |
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Michael A. Bellesiles
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University of Glasgow
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