Court Records and History

Abstract

A MERICAN legal history is only beginning to receive from scholars the attention it merits. As yet, however, there is no History of American Law corresponding to the works of Maitland and Holdsworth for English law, and only the smallest beginnings have been made towards reconstructing the story of the development of our law. Over the course of the last thirty years several studies and monographs have appeared on the subject, but much of what has been written has been general or descriptive in character. Few have attempted to relate the history of American law to the social and economic pattern of each period; fewer still have sought to go behind the law of the early period to inquire about its sources in English and Dutch law of the sixteenth and seventeenth centuries. In consequence, there are serious gaps in the historian's knowledge, and among lawyers there are serious misconceptions about the nature of our law before i80o. Those misconceptions become significant, for example, when it is recalled that the constitutions or statutes of many states incorporated the law of the particular colony into the law of the state.' Of the three hundred years of our legal history the colonial period is especially deserving of attention. The few studies of the law of the period which have appeared bear ample witness to the opportunities which there are for thoughtful research and writing in a comparatively unexplored field. The task of reconstructing the early history of our law is not, however, a simple one. Because the background of each colony was different, and because their development in most cases followed different lines, their legal systems differed considerably. Thomas Jefferson, for example, writing in Virginia, could speak of the law of Massachusetts as foreign along with the law of the Barbados.2 Basically, to the extent that English law was common to them all, the English colonies had much law in common; however, it is essential that the separate development of the legal systems be studied before accurate generalizations can be made. To that end, a great deal of material must be sifted from court records,