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— twelve — “By Their Laws Shall Ye Know Them” Law and Identity in Colonial British America For the past quarter century, an expanding cadre of early American legal historians, abandoning the internalist approach of earlier legal historians for the sociolegal approach pioneered, for American national legal history, by J. Willard Hurst in the 1950s, has been producing a rich and sophisticated body of work on many aspects of colonial British American legal cultures.¹ That the significance of this work has not been sufficiently appreciated—that scholars of nineteenth- and twentieth-century American law have largely dismissed it as irrelevant to national legal history, and that early American historians have underestimated its importance to the understanding of colonial British America—is the animating consideration behind the publication Under the title “The Social and Cultural Functions of Law in Colonial British America: Some Reflections,” this chapter was initially written as a closing address for the conference “The Many Legalities of Early America,” Institute of Early American History and Culture, Williamsburg, Virginia, November 24, 1996. Under the same title, it was presented at a symposium honoring Professor Robert Weir, University of South Carolina, Columbia, October 10, 1997; at the Mid-Michigan Seminar in Early American History, William L. Clements Library, University of Michigan, Ann Arbor, October 24, 1997; and at the Department of History, Volgograd State University, Russia, September 13, 2000. Under the title “Liberty and Law in the Construction of Colonial and Revolutionary Identity,” it was presented in a slightly revised form as a lecture to the Royal Irish Academy, Dublin, Ireland, March 9, 1999; to the Department of History, St. Louis University, Missouri, December 3, 1998; and to the Department of History, University of New Hampshire, Durham, April 28, 2000. Entitled “‘By Ye Laws Shall Ye Know Them”: Law and Identity in Colonial America,” it was given as a lecture at the Rhode Island Historical Society, Providence, February 29, 2000; as the Frank X. Gerrity Lecture, St. Joseph’s University, Philadelphia, November 14, 2000; at the Department of History, University College, Swansea, Wales, May 29, 2001; and at the Department of History, Southwest Texas State University, San Marcos, November 7, 2001. It is here republished with permission from “‘By Their Laws Shall Ye Know Them’: Law and Identity in Colonial British America,” Journal of Interdisciplinary History 33 (Autumn 2002): 247–60. 1. See James Willard Hurst, Law and the Conditions of Freedom in the Nineteenth-Century United States (Madison: University of Wisconsin Press, 1956). Greene, final pages 278 Greene, final pages 278 2/12/13 2:27 PM 2/12/13 2:27 PM “By Their Laws Shall Ye Know Them” 279 of The Many Legalities of Early America.² Edited by Christopher L. Tomlins and Bruce H. Mann, two of the most respected contributors to this field, this volume represents a major effort to display the range and importance of early American legal historical work and “assess the state of early American legal history.”³ It includes fourteen essays, thirteen presented at a conference sponsored by the Omohundro Institute of Early American History and Culture in Williamsburg, Virginia, in the fall of 1996. Uniformly competent, empirically rich, and, if somewhat short of theory, often analytically powerful, these essays treat a wide variety of subjects arranged under four subordinate headings. In a section entitled “Atlantic Crossings ,” James Muldoon explores the theoretical foundations of John Adams’s argument for English possessions in America; Mary Sarah Bilder, the legal and ecclesiastical roots and development of the culture of appeal in early New England; David Barry Gaspar, the relationship between English law and the law of slavery in seventeenth-century Jamaica; and David Thomas Konig, the tensions between judge-made law and statute in colonial and Revolutionary America. Under the rubric “Intercultural Encounters,” Katherine Hermes examines Indian relations to New England courts in the seventeenth century; James Brooks, the operation of customary justice in colonial New Mexico; and Ann Marie Plane, the relationship between native customary law and the English common law tradition among Narragansett Indians. Under the heading “Rules of Law: Legal Relations as Social Relations,” Christine Daniels examines the way servants in seventeenth- and eighteenth-century Maryland used the courts to protect their contractual rights; Linda L. Sturtz, how Virginia settlers’ use of powers of attorney functioned to accord women legal agency; John G. Kolp and Terry L. Snyder, the political implications of the fact that male franchise rights in colonial Virginia often depended on wife-owned property; and Holly Brewer, changing ideas about child...

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