Free Law Consulting

This is the first of a projected four-volume history of the development of American common law during the colonial period, authored by one of our most distinguished legal historians, William E. Nelson of NYU (author of amongst other works “Americanization of the Common Law”). This initial volume covers New England and the Chesapeake (i.e., Virginia and Maryland) between 1607 and 1660. My initial reaction to the book was to wonder what Nelson was up to since this area has been well trod upon since at least Paul Reinsch’s “English Common Law in the Early American Colonies” (1899). Once you get into the book, Nelson’s approach becomes very evident. His analysis is based upon an archival synthesis for all 13 American colonies, which he believes fills a gap in the present scholarly literature. How heaviy the book is based upon archival research becomes evident when one realizes that 59 out of the total of 192 pages consist of notes reflecting Nelson’s exhaustive research in original sources (primarily American cases and records). For Nelson, the key question is not the “reception” of the common law necessarily, but rather how colonial common law developed into post-revolutionary American law. Nelson focuses upon issues such as how did colonial law differ between colonies, and how was it similar? What impact did political, social, religious, and economic factors have on legal development?

In brief, Nelson finds the New England colonies were concerned with implementing the law of God as the magistrates saw it; by contract, Virginia was enterprise focused and sought to develop a system of forced labor to service its tobacco plantations. Eventually, both regions began to focus on developing a “rule of law” (in the sense employed by John Phillip Reid in his recent book) to eliminate arbitrary legal processes. This was critical in Virginia especially since it needed to attract outside investment in order to survive. The volume concludes in 1660, before the end of “benevolent neglect” by the British government is replaced with efforts to forge a coherent empire. All the better to focus upon the impact of local conditions on legal development, Nelson suggests.

Although the book is concise, and this is one of its great virtues, it is highly suggestive of themes that Nelson will develop in the subsequent volumes: Volume II on the middle colonies and the Carolinas; Volume III dealing with the legal impact of British efforts to create a coherent empire in North America and the Caribbean; and finally Volume IV assessing the status of American colonial law on the even of the revolution. The book does lack a bibliography, and given Nelson’s command of the pertinent literature this is somewhat disappoininting. This is an ambitious undertaking, but this initial volume well demonstrates that Nelson is more than equal to the task; I hope he writes as quickly as he does well.
Rating: 5 / 5