Cover

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Title Page, Copyright

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Preface

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pp. v-vii

Study of American legal history can be a stimulating experience both because of its intrinsic interest and because of the light which it sheds upon broad themes in United States history. Recently formulated hypotheses concerning the scope of legal history are moving the subject away from the old-fashioned conception of it as institutional history and...

Contributors

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pp. ix-x

Contents

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pp. xi-xii

PART ONE: GENERAL INTRODUCTION

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I. AN INTRODUCTION TO EARLY AMERICAN LEGAL HISTORY

David H. Flaherty

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pp. 3-38

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...

PART TWO: THE SEVENTEENTH CENTURY

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II. LAW AND COLONIAL SOCIETY

George L. Haskins

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pp. 41-52

It has been observed that if we are ever to have a competent legal history of the American colonial period, "some way will have to be found for getting scholars and colonial court archives together."1 It may also be observed that some way must be found to familiarize historians with the nature and function of law in particular colonial societies. These two...

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III. COLONIAL COURTS AND THE COMMON LAW

Zechariah Chafee, Jr.

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pp. 53-82

When men settle in a new land, they cannot be there long without having law of some kind to adjust their disputes and regulate important transactions. They will have to put this law in operation themselves whenever the land is vacant or thinly peopled by natives who have no power over the settlers from outside. What sort of law will the settlers...

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IV. KING'S LAW AND LOCAL CUSTOM IN SEVENTEENTH CENTURY NEW ENGLAND

Julius Goebel, Jr.

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pp. 83-120

The first century and three-quarters of American legal development is bounded by two landmarks which have served as monuments to those historians who have attempted to survey the field of colonial law. The first of these is the royal charter; the second is the so-called reception statute. The former with its mandate that the law in the lands...

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V. THE LEGAL HERITAGE OF PLYMOUTH COLONY

George L. Haskins

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pp. 121-134

More than one legal historian has more than once drawn attention to the contributions that Plymouth Colony made to American law in the seventeenth century.1 Yet recent general studies continue to insist that Plymouth made few permanent contributions of any kind to the American heritage. Thus, Samuel Eliot Morison, dean of American colonial historians...

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VI. MASSACHUSETTS AND THE COMMON LAW: THE DECLARATION OF 1646

Richard B. Morris

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pp. 135-146

The theory of the transplantation of the common law to this country has given rise to a moot question in American legal history. The dicta of our modern decisions, predicated in large measure on untenable historical grounds, are of little service in the study of this problem.1 One reason for misapprehension has been the undue weight accorded to authorized...

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VII. THE LAWS AND LIBERTIES OF 1648

Thorp L. Wolford

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pp. 147-185

In 1906 the New York Evening Post, under the heading, "The Most Valuable American Printed Book." announced that a copy of the long lost Lauues and Libertyes Concerning the Inhabitants of Massachusetts, of which six hundred had been printed in 1648, had been found in a library in distant Rye, England.1 If not then, at least after the book was reprinted...

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VIII. THE SPREAD OF MASSACHUSETTS LAW IN THE SEVENTEENTH CENTURY

George L. Haskins and Samuel E. Ewing

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pp. 186-191

No history of the colonial period will be complete until the spread of ideas from colony to colony has been fully investigated. Intercolonial relations have received considerable attention,1 but the processes by which, and the extent to which, patterns of life and thought were carried from colony to colony still await detailed exploration. A significant chapter...

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IX. THE SUFFOLK COUNTY COURT, 1671-1680

George E. Woodbine

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pp. 192-203

During the past year two notable contributions have been made to the hitherto much too neglected field of American colonial legal history. Under the auspices of the American Historical Association Judge Bond brought out the Proceedings of the Maryland Courts of Appeals, and now Professors Chafee and Morison make available for us these Massachusetts documents of a full generation or more earlier. Though some court...

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X. THE BEGINNINGS OF PARTIBLE INHERITANCE IN THE AMERICAN COLONIES

George L. Haskins

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pp. 204-244

Thomas Jefferson's attack on primogeniture in 17761 is generally considered to have led the way in America for the laws abolishing the descent of fee simple estates to the eldest son. Under these statutes for well over a hundred years the rule has prevailed in the United States that when a person dies intestate, seised of real property in fee simple, such property descends equally to his or her children, subject to the...

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XI THE COURTS AND THE LAW IN COLONIAL NEW YORK

Julius Goebel, Jr.

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pp. 245-278

It is only in recent years that what men said and did in law courts has come to be regarded as an important source of information for social history. Our attention has been focused upon the more material evidences of how our ancestors lived, and we have preferred to look aside when we came upon their quarrels or their lapses from grace, except...

PART THREE: THE EIGHTEENTH CENTURY

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XII. ADMINISTRATIVE CONTROL OF THE COURTS OF THE AMERICAN PLANTATIONS

Joseph H. Smith

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pp. 281-335

Studies of the imperial control of the administration of justice in the American plantations in the seventeenth and eighteenth centuries have tended to concentrate on the appellate jurisdiction of the King in Council or the Privy Council over the various colonial courts—common law, chancery, probate, and admiralty.1 Yet an important adjunct to the...

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XIII. THE INFLUENCE OF COLONIAL CONDITIONS AS ILLUSTRATED IN THE CONNECTICUT INTESTACY LAW

Charles McLean Andrews

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pp. 336-366

The colonial era of our history has generally been treated with an insufficient appreciation of its economic forces, and, in consequence, there has been a tendency to minimize the importance of certain periods of that history which show little political activity and are to the world at large dull and uninteresting. Such a period is the first forty years of the eighteenth...

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XIV. "LAW ENFORCEMENT IN COLONIAL NEW YORK:" AN INTRODUCTION

Julius Goebel, Jr.

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pp. 367-391

The prospects of independence so lately declared were dark, indeed, when in 1777 the embattled New Yorkers resolved as a part of their constitution that the acts of the provincial legislature, and such parts of the common law and the statutes of England and Great Britain as "together did form the law of the . . . colony" on the day of the battle of Lexington,...

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XV. THE RISE OF THE NEW YORK BAR: THE LEGAL CAREER OF WILLIAM LIVINGSTON

Milton M. Klein

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pp. 392-417

On the eve of the American Revolution, the legal profession in New York possessed both social prestige and political power. The terms "lawyer" and "merchant," Crevecoeur noted in his Letters from an American Farmer, were the two "fairest titles" in colonial urban society. In New York, the "Dominion of the Lawyers" was a ceaseless complaint of one loyal servant of the King. Lieutenant Governor Cadwallader Golden...

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XVI. LEGALISM VERSUS REVOLUTIONARY DOCTRINE IN NEW ENGLAND

Richard B. Morris

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pp. 418-432

No exposition of New England's intellectual milieu in the Revolutionary Era can progress far without being confronted with a significant paradox. That the front rank in leadership in the cause of political independence should have been assumed by a group of men who were largely responsible for bringing America into subjection to the reactionary...

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XVII. THE PROCESS OF OUTLAWRY IN NEW YORK: A STUDY OF THE SELECTIVE RECEPTION OF ENGLISH LAW

Mark DeWolfe Howe

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pp. 433-450

It has been said that "one of the chief difficulties confronting a student of our legal history is that the whole subject of the reception of English law, both common and statutory, was not thought out in any consistent way, but was left unsettled and in the air."1 It is doubtless true that during the colonial period the selective reception and discriminating rejection of English law had, in large part, been the product of...

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XVIII. THOMAS JEFFERSON AND BLACKSTONE'S COMMENTARIES

Julius S. Waterman

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pp. 451-488

The lectures of Blackstone, begun at Oxford in 1753, were the first to be delivered on English law in any university, and with their publication from 1765 to 1769, brought renown1 to one whos success before had been in college administration and not in law.2 Nevertheless, the published lectures met with criticism in England. Jeremy Bentham, a student of Blackstone who listened "with rebel ears/' soon wrote an...

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XIX. DELAWARE CASES, 1792-1800

Zechariah Chafee, Jr.

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pp. 489-513

Let us now turn to the strictly legal aspects of this newly published Delaware material. It reveals a mature bench and bar in full operation. The attorneys are not just amateurs with a gift of gab like the Rhode Island lawyer of the same period, who learned his profession by going out into his garden and addressing five cabbages in a row for...

Glossary

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pp. 514-522

Index

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pp. 523-534