A History of American Law: Third Edition

The colonial period is, for most lawyers and laymen, the dark ages of American law. When an American lawyer faces a legal problem, she normally considers two sources of legal authority: (1) statutes and (2) reports of appellate cases. The typical American lawyer has probably never seen, dealt with, or even heard of any cases or statutes from the colonial period. There is a good reason why. Until well after independence, there were no handy and accessible collections of colonial cases and statutes. Even now, only scattered collections of colonial cases have been published. Many colonial statutes survive only in ancient or rare editions; some have been altogether lost. The Laws and Liberties of Massachusetts (1648), one of the most important colonial codes, had utterly vanished, until a copy turned up in the twentieth century.

That so much of the native tradition disappeared is not really surprising. Law constantly changes; and old law is basically useless law, except to scholars. Only collectors and historians care much about the laws of Massachusetts in, say, 1830. The laws of 1648 are even deader; they were already quaint and outdated during the lifetime of John Adams. Conditions between the time of settlement and independence were worlds apart. The legal needs of a small settlement, run by clergymen, clinging precariously to the coast of an unknown continent, were fundamentally different from the needs of a bustling commercial state. Gross trends in the growth of the law have always followed gross trends in the larger society. In the eighteenth century, for example, colonial law seemed to swing back toward English models. Even after the Revolution, American law appeared to become, in some ways, a bit more English. This was not really a paradox. "English" is a misleading term. Economic growth and the social division of labor called for tools of law the Puritan oligarchs of 1650 had no need of and no use for. The colonial experience could not supply the needed new tools. But some of these tools could be easily imported from abroad. Only from England was there a source and a supply of law that American lawyers could use without translation. It was a source of law that was familiar; and it came from a country that was growing, changing, and developing, legally and economically, in its own right. Colonial law came to look more like English law by the time of the Revolution; but there was still a great deal about it that was new, fresh, and baldly indigenous.