The Cambridge History of Law in America; vol 1, Early America (1580-1815); vol 2, The Long Nineteenth Century (1789-1920) (review)

In their preface, the editors of The Cambridge History of Law in America observe that

Cambridge histories have become something quite unique - each an avowedly collective endeavor that offers the single best point of entry to the wide range of an historical subject, topic, or field; each in overall conceptual design and substance intent not simply on defining its field's development to date but on pushing it forward with new ideas.

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Cambridge histories 'always define their audiences widely' and the editors state that their goal is to reach not just academics but also the legal profession and the general public. The editors have certainly achieved their first goal: for scholars at least, this impressive collection of the work of some sixty authors will be the 'single best point of entry' to the field for the foreseeable future. Whether their other goals have been achieved will be addressed later in this review, which deals only with the first two volumes of the three in the series. I hope to review volume 3 separately at a future date.

All the chapters (sixteen in volume 1, nineteen in volume 2) follow the same format. Developments in the field of law under review are discussed in a narrative fashion, with little reference to historiographical debates. The only footnotes, usually, are those providing sources for original documents that may be cited in the body of the text. A substantial bibliographic essay accompanies each chapter, and this is where existing scholarship is noted and, sometimes, critiqued. This format has undoubted strengths, encouraging a clear and vigorous style of presentation not weighed down by detours into the work of previous scholars. Its weakness is that assertions are often made in the text the validity of which cannot be verified by the reader. When David Konig writes that, after the English takeover of New York, the courts there kept the Dutch practice of allowing obligations to be assignable 'well before the English courts did' (1: 176), one would like to know the source of this observation. According to Holdsworth, Chancery assisted assignees for value of choses in action in England in the first half of the seventeenth century, even if it was not 'quite settled' until the dawn of the eighteenth that all forms of choses in action recognized at common law could be assigned in equity. ¹ On balance, however, the benefits of this format outweigh the drawbacks.

Can it be said that each essay 'defin[es] its field's development to date [and] push[es] it forward with new ideas'? The essays for the most part satisfy the first part of the test, but relatively few, in this reviewer's opinion, go on to challenge the reader with fresh insights or point to new orientations for future exploration. Let me note three that do. Katherine Hermes's 'Law of Native Americans to 1815' will be of interest to scholars in all settler societies that deal with the interaction of indigenous and European law. She proposes to approach Native American law through the concept of 'jurispractice,' which she defines as a 'legal mentalité . . . that evolved as an indigenous way of acting legally, both within indigenous societies and among them, and that could, after European settlement, be communicated to colonial authorities whose systems were different' (1: 33). Using linguistic evidence, the observations of early Europeans, and the treatises written by later generations of literate Native Americans about their traditional customs, Hermes provides some guidance for how to think about pre-contact law without being overly speculative. She concludes that the current challenge is for scholars 'to explore the ways in which sustained interaction with native jurispractice affected the jurispractice and structures of governance in the emerging polity that would come to be called the United States...