E Pluribus Unum: How the Common Law Helped Unify and Liberate Colonial America, 1607–1776 by William E. Nelson

Abstract

Reviewed by: E Pluribus Unum: How the Common Law Helped Unify and Liberate Colonial America, 1607–1776 by William E. Nelson Justin A. Joyce (bio) E Pluribus Unum: How the Common Law Helped Unify and Liberate Colonial America, 1607–1776 william e. nelson Oxford University Press, 2019 272 pp. William E. Nelson's E Pluribus Unum: How the Common Law Helped Unify and Liberate Colonial America, 1607–1776 is dedicated "to my students," an inscription that not only lays bare Nelson's commitment to those following his meticulous example as a leading scholar of early American law but also ought to prepare readers for the rigor of this book's investigations into the formation and function of this system from the seventeenth and eighteenth centuries. In short, this is a book replete with fascinating details, but the compelling analyses in E Pluribus Unum positively require a hefty amount of prior legal knowledge. This is not a condemnation, nor should it dissuade potential readers. It is simply a testament to the erudition at hand in Nelson's magisterial study. That the book is a condensation and summation of four volumes of his own previous [End Page 598] scholarship, The Common Law in Colonial America (Oxford UP, 2008–17), makes it even more impressive. Anyone coming to the book with an established conception of the development of legal systems in the colonial period is sure to have that conception challenged. For Nelson is upfront about the thesis of this book: contra the legal and historical professions' traditional focus on national politics that has structured studies of the development of American legal systems, Nelson focuses on the local particulars among the rather different and diverse structures that comprised the legal regimes of the thirteen original colonies. While it has long been held that these colonies adopted and then adapted the English common law system, Nelson's focus on cases and disputes at the ground level, as it were, reveals instead a widely different set of legal regimes, from the martial law that originally structured the Virginia colony, to the Puritan religious code that reigned in the Massachusetts Bay Colony, to the Dutch aristocratic court that governed New Netherlands, and the mixtures and combination in between as each of these areas adapted to the unique circumstances presented within these regions. The first part of the book, consisting of three chapters that cover 1607–60, details many of these different regimes through a focus on notable cases and disputes that came to be adjudicated in these colonies. Nelson's understanding of government, as "institutions through which power is channeled" (1), allows the divergent makeup of the populaces—along with the purposes for which these outposts across the Atlantic were founded—to cohere as a portrait of the remarkable dissimilarity between the colonies. The differences between these regimes, Nelson aptly demonstrates, makes it more remarkable still that these distinctive systems would eventually be subsumed under the common law system. Yet after the restoration of the English monarchy in 1660, bringing these colonies under a coherent rule was very much the goal of Charles II and James II. How then, to unite these widely different places and governments? Why, the imposition of the common law system, of course. A notion quite easier said than done, Nelson demonstrates, as the second part of the book details over five chapters covering 1660–1750 the various encounters with the common law within the colonies. Again, Nelson's focus on the local case records shines through here as an apt strategy for illuminating this variety, as some of the colonial governments were initially quite resistant to the integration of British common law, with Massachusetts and New York particularly [End Page 599] defiant. Others, like Pennsylvania, New Jersey, and the southern colonies more simply accommodated this change and integrated common law fairly easily into their legal systems. The growth of the legal profession throughout the colonies, whether from the large amount of lawyers trained at the Inns of Court like in Virginia, or from the development of a local bar and legal training in places like Philadelphia, Charleston, New York, and Boston not only helped to facilitate this eventual acceptance throughout the...