Introduction: The “Countenance of Authoritie”
[N]o mans goods or estaite shall be taken away from him, nor any way indammaged under colour of law or Countenance of Authoritie, unless it be by vertue or equitie of some expresse law of the country warranting the same, established by a generall Court and sufficiently published, or in case of the defect of a law in any partecular case by the word of God.
The Liberties of the Massachusetts Collonie in New England, 1641, section 1.3
I have wrote you the want we have of two, or three, honest attorneys, (if any such thing in nature).
Edward Randolph, Secretary to Governor Andros, Letter to England 1689.4
The Reformation of the Law, and more Law for the Reformation of the World, is what is mightily called for.
Cotton Mather, Bonifacius—An Essay Upon the Good that is to be Devised and Designed of those who Desire to Answer the Great End of Life . . . (Boston, 1710), 165.5
“MASSACHUSETTS was a legalistic society from beginning to end. . . .”6 From the arrival of the visible saints to the edge of the Revolution, the lives of the people of Colonial Massachusetts were touched in countless ways by law and legal ideology, by the “Countenance of Authoritie.” Second only to law’s close relatives, theology and ecclesiastical polity, legal issues dominated the intellectual life of the colony and defined the realities of power and social control.7
Yet, “the colonial period is, for most lawyers and laymen, the dark ages of American law.”8 Almost as true today as when Samuel Eliot Morison wrote the Preface to the last legal volume of this society fifty years ago, “legal development is probably the least known aspect of American colonial history.”9 Despite pioneering work by great scholars like George Haskins, Joseph Smith, Richard B. Morris, Zechariah Chafee, Jr., and Julius Goebel, the factual map is full of empty quarters illustrated only by decorative conjecturing.10 Indeed, even the few attempts to draw basic outlines—on issues as fundamental as the primary social functions of the law—have led to controversy and doubt.11
The primary curse on these scholarly pioneers was the nature and state of the original sources, “either disappeared or become virtually inaccessible—buried in poorly organized manuscript collections at local archives.”12 What is worse, they had to fight off patriotic and professional romanticism on the one hand, and dogmatic, narrow bickering about the “scope” of legal history and its “proper” relationship to history and law on the other.13 “Little wonder, then, that a previous generation of scholars tended to dismiss the legal experience of the colonies as mere ‘frontier’ justice rendered in a kind of ‘dark age’ antedating the gloriously Normative’ era of American jurisprudence from the revolution to the civil war.”14
But for the last two decades, dawn has been slowly breaking over this scholarly brave new world. The empirical tools and the objectives of colonial legal scholarship have been changing, bringing fundamental new opportunities. There has even been basic change in perceptions as to what legal history is all about.
Beginning with the brilliant work of Joseph Smith, James Willard Hurst, and George Haskins, it has become increasingly plain that conventional doctrinal and institutional studies do not ask the most important questions about so-called “frontier” law.15 Rather, only by studying legal developments in the context of social and economic power are significant insights achieved. Further, the great contributions of Perry Miller have taught a generation of scholars that legal ideologies—ideas about law—have a power of their own, a power which cannot be understood in isolation from the political and religious convictions of those who used the law.16 Sophisticated cross-disciplinary work, ranging from statistical techniques to theological studies, promises great advances in the quality of this “new legal history.”17
A second radical development has been the so-called “archival revolution.” In Massachusetts, the progress has been stunning. Under the leadership of Chief Justice Edward Hennessey, the Massachusetts Judicial Records Committee, and the Colonial Court Records Project of the Social Law Library, all Massachusetts colonial court records are gradually being united in a single, scientific repository. The Plymouth Court Records Project, edited by David T. Konig, is another major achievement.18 Many of these documents are from, the lower courts, and show us much more about the lives of ordinary people, and about the poor and the oppressed, than previously printed sources. As the splendidly practical articles of Robert J. Brink, William E. Nelson, Catherine S. Menand, and Michael S. Hindus in the “sources” section of this book demonstrate, these new archival developments can and should work hand in glove with the newest ideas in legal history.19 One of the major reasons for this book and conference was to describe the extent and promise of this “revolution” in Massachusetts and to give practical guidance to scholars who wish to use these archives.
The final radical change is perhaps the least important—but it is surely one of the most emotionally charged and controversial. As Perry Miller said, “Americans were the most litigious people in the world, as well as the most contemptuous, or at least distrustful, of the lawyers they employed.”20 Who were these legal “professionals”? How early did they show up, and how important were they? Were they the founders of American civil liberties, or the instruments of political and economic exploitation? Or both?
Only very recently has anyone attempted adequate, scientific study of these “professional” issues. The conventional “bar” histories, such as those of Anton-Hermann Chroust and Charles Warren,21 did not make extensive use of the range of original sources now available, nor did they ask the hard questions. New work by scholars such as Gerard Gawalt, Stephen Botein, Maxwell Bloomfield, John Reid, Robert Stevens, John Murrin, Daniel Calhoun, Charles McKirdy, Dennis Nolan, and Erwin Surrency—again inspired by James Willard Hurst—is opening doors to more candid and meaningful discussion.22
Further, this new professional history has helped to address another charged issue—“law without lawyers.” Commencing with John P. Dawson’s great A History of Lay Judges (Cambridge, Mass., 1960) it has become increasingly obvious that conventional ideas of professionalism have blinded us to the actual use of law in both England and colonial America. We have ignored the widespread role of “amateurs” in the enforcement and development of legal ideas. As George Haskins forcefully demonstrates in this book, an absence of lawyers hardly was an absence of law.23 The central issues are, rather, what effect “lay” justice has on law and society—and how professionalism changes that.
The essays that follow in this book will illustrate all of these changes in approach and sources. To appreciate their significance, it is useful to outline the primary problems of Massachusetts colonial legal history.
The Major Problems of Massachusetts Colonial Legal History
I. The Earliest Period: 1620–1648
The signing of the Mayflower Compact on the waters off Cape Cod on 11 November 1620 and the arrival of the ship Arbella, with the Massachusetts Bay Colony Charter on board, at Naumkeag (Salem) on 12 June 1630 are the starting points of Massachusetts legal history—and the perpetual debates about the role of colonial law. The primary issue of the early period has always been the extent and duration of what David Konig has called the “Puritan ideal of communalism.” Also hotly debated is the extent of direct importation of English laws and legal expertise, and the degree to which law, as opposed to other community institutions, was used for social control.24
There are certain striking facts about early colonial Massachusetts. The first, and perhaps most important, is that England was rapidly approaching civil war. In 1629 Charles I had resolved to govern without Parliament, and by 1640 the royal government was close to complete breakdown. Thus, despite the various crises that beset the colony—such as Dr. Robert Child’s remonstrance and the Antinomian crisis—the colonists, with their Charter safely in their hands on this side of the ocean, were largely left alone. There were also bold initiatives by the colonials. The founding of Harvard College (1636) and the first public schools in British America (1642, 1647), the establishment of the first printing press in the American colonies (1639), and the adoption of the great Cambridge Platform (1648) have overshadowed legal developments. But these, too, were remarkable by any standard.
Three of the most notable legal initiatives are analyzed in detail in this book. Thomas Lechford was, without a doubt, the first practicing lawyer in Massachusetts.25 Lechford’s law practice, which spanned the years 1638 until his return to England in 1641, can obviously tell us much about the early legal atmosphere in the colonies—both in terms of Puritan “communalism” and the importation of English law. Thomas G. Barnes’ essay, “Thomas Lechford and the Earliest Lawyering in Massachusetts, 1638–1641,” is the first detailed analysis of this early practice. It establishes that Lechford was a skilled conveyancer and pleader, familiar with English legal forms and devices; that his services were much in demand; and that he left for England more for religious than professional reasons. Lechford’s experience indicated both a society with a concrete need for law of a fairly technical type, even at a very early date, and the ability of a lawyer to prosper there, even though somewhat at odds with the religious order.
George L. Haskins’ essay “Lay Judges: Magistrates and Justices in Early Massachusetts” traces the adaptation of that remarkable English institution to American conditions. It is true that some of the original leaders of the colony were trained in law. A notable example was John Winthrop, who was a member of Gray’s Inn and Inner Temple, an attorney to the Court of Wards and Liveries, and a steward experienced in running the court leet at his father’s Groton manor.26 Winthrop’s son, John Winthrop, Jr., three of the first Assistants, Isaac Johnson, John Humfry, and Roger Ludlow, together with Richard Bellingham, Simon Bradstreet, Herbert Pelham, Thomas Dudley, and Nathaniel Ward all received some legal education in England.27 Yet none of them were practicing “professionals.” Instead, they served as legislators and/or lay magistrates. Haskins’ analysis confirms John P. Dawson’s thesis, developed in other contexts, that the institution of lay magistrates provided “further cohesion within the colony beyond that fostered by the churches and by the general ‘due forme of Government,’” and that nonprofessional, local justice would represent, paradoxically, both a major English legal heritage and a model for future colonial independence.28
Morris L. Cohen’s essay, “Legal Literature in Colonial Massachusetts” focuses on what must be the most astonishing legal development of the fruitful early period—Nathaniel Ward’s “The Body of Liberties” (1641) and The Book of the General Lawes and Libertyes (1648). These compilations were extraordinary—there was nothing like them in England or anywhere else in the colonies. They anticipated the parallel, but quite separate, law reform efforts during the English Civil War.29 Their most important feature was their inherent assumption that both ruling power and societal pluralism should be legally limited. In this sense, they reflected political developments in early seventeenth-century England, before the voyages of 1629–1630, and also anticipated the “modern scientific concept of sovereignty.”30 As John D. Eusden has observed in the English context, “The convictions of the Puritans and the lawyers about the nature and functions of laws and the relation of legal norms to ultimate authorities formed a prototype for modern pluralist thought.”31
These contributions of Barnes, Haskins, and Cohen reinforce Haskins’ original thesis in Law and Authority in Early Massachusetts. The early period was remarkably creative. There was both ingenious adaptation of English legal institutions to new conditions and genuinely original ideas, such as “The Body of Liberties” and the Lawes and Libertyes.32 These ideas cannot be seen in isolation from Puritan innovation in religious thought and ecclesiastical polity—and it is hardly a coincidence that the Lawes and Libertyes were printed in 1648, the year of the Cambridge Platform.33 A valuable legal heritage was confronted with rough social challenges, and there was a high degree of actual independence. This was fertile ground for legal innovation. It was none the less a remarkable achievement on the edge of a wilderness.
II. The Later Bay Colony and the Inter-Charter Period: 1649–1691
The next forty years remain a “mystery” period. Extending from the publication of the Lawes and Libertyes and the death of John Winthrop to the Second Charter, this period represents a great gap in our knowledge about Massachusetts law and lawyers. Despite three outstanding specialized studies: David T. Konig’s Law and Society in Puritan Massachusetts (Chapel Hill, 1979) limited to Essex County 1629–1692; Joseph H. Smith’s Colonial Justice in Western Massachusetts (1639–1702) limited to the Pynchon Court Record in frontier Springfield; and the Colonial Society’s own Records of the Suffolk County Court 1671–1680 (Publications,, xxix, xxx, Boston, 1933) with Zechariah Chafee, Jr.’s outstanding Introduction,34 there remain very substantial questions as to the state of the legal profession, the sources of the law, and the actual operation of the justice system.
It is regrettable, but typical, that none of the papers presented at this conference addressed the period directly. Barbara A. Black touches on its end in “Nathaniel Byfield: 1653–1733,” and Morris L. Cohen’s “Legal Literature in Colonial Massachusetts” emphasizes the very important legal printing of the period, including supplements to the General Lawes and Libertyes in 1650, 1654 and 1657, The Book of the General Lawes in 1660, The General Laws and Liberties . . . revised and reprinted of 1672, the Book of the General Laws of . . . New-Plymouth in 1672 and 1685, and statutory printings for Connecticut in 1673. Most important, the annual printing of the Several Laws and Orders began in 1663.
It is not just that there was a very great deal of legal printing. References to legal topics were common in the religious and political literature, as Cohen points out.35 Further, in 1649, 1650, 1656 and 1673 important statutes were passed regulating hiring of counsel, sources of mercantile law, representation by attorney, length of legal arguments, and barratry.36 Yet detailed studies are few.
The conventional professional histories either skip this period or give the following picture. The Bay Colony was resting on the laurels of its earlier creative period. The legal printings, admittedly impressive, merely repeated and consolidated earlier gains. The English civil war stopped immigration—the population actually decreased—and the economy was depressed. The silver lining was the forced development of trade, increasingly independent of England. The collapse of peaceful Indian relations and the subsequent ravages of King Philip’s War (1675–1676), together with uneasiness concerning the restored Stuart monarchy, resulted in a “low profile” for the Bay Colony government and severe rifts among its leaders. Throughout this period, and right up to the dreaded revocation of the Charter in 1684 and the Andros regime, there was allegedly little or no evidence of legal education, legal practice, or legal thought.37 Indeed, several historians have gone so far as to claim that both the loss of the Charter in 1684 and the Salem witchcraft crisis in 1692 were due to a lack of lawyers and legal expertise in the Bay Colony!38
The limited evidence we have casts severe doubt on this bleak reconstruction. Not only the printed legal publications, but the court records and surviving judicial note books give a very different impression. The limited analytical work done with these records, most notably that of Joseph H. Smith, Zechariah Chafee, Jr., David T. Konig, and Edwin Powers, indicates a high rate of litigation. This included relatively sophisticated and complex legal disputes that were systematically—although not quickly—resolved.39 Barbara A. Black’s essay in this volume, “Nathaniel Byfield: 1653–1733,” although focused on Byfield’s personal legal problems, strongly confirms this view. As Black observes, “the inhabitants of Bristol were embroiled in controversy among themselves from virtually the moment of settlement. They squabbled, and sued, over rates and roads, mills and ministers, over land and water. . . . No Puritan Eden this.”40 Byfield’s personal legal struggles were also technical and highly involved. They required the aid of expert counsel, and seemed to go on forever.41 Black’s study adds credence to the similar descriptions by Chafee, relying on the Suffolk records of 1671–1680, and by Konig, relying on the Essex records of 1629–1692.42 As Chafee observed, “The most disagreeable characteristic of the colonists which is revealed in these pages is their unwillingness to end a lawsuit.”43 It would be most surprising if this were a society where legal development stood still, and legal expertise was nonexistent.
Further, the negotiations with England after the revocation of the Charter, and the arrangements following the overthrow of the Andros regime in 1689, hardly speak of legal naivete. On the contrary, Increase Mather’s mission to England and the activities of the Council for the Safety of the People and the Conservation of the Peace were secular in emphasis and sophisticated in technique. The end result, the signing of the new charter on 7 October 1691, may have been attacked by some of the clergy, but it established a new legal order which preserved some previous gains, at least in terms of localism and limitation of central authority by law.44
There is another mystery. Was there a legal profession? The conventional bar histories say there was practically none—and that what “attorneys” existed were untrained, incompetent, and really only “attorneys in fact” in the sense that they appeared on another’s behalf, like the simple exercise of a “power of attorney” today.45 According to this view, the separation of the colony from England by the Civil War had cut it off from English legal training, and nothing had developed indigenously to take its place.
What evidence can be adduced to support this view? An examination of the careers of Harvard graduates, set out in table form in this book as “Appendix II” to Charles R. McKirdy’s article, shows only one self-styled “lawyer” between 1648 and 1684. But there is a major “boom” in the Inter-Charter period of 1685–1692 with four law career choices—including the distinguished names of Benjamin Lynde, Addington Davenport, and Paul Dudley—all destined to be among the earliest professionally trained justices of the Superior Court.46 During the Andros regime, Andros’ personal secretary, Edward Randolph, wrote in 1689 to England of the “want we have of two, or three, honest attorneys.”47 “We have but two, one is West’s creature,—came with him from New York, and drives all before. He who takes extravagant fees, and for want of more, the country cannot avoid coming to him. . . .” Randolph was not, of course, an unbiased source, and was actually writing to plead for “judges from England,” but his letter shows a demand for legal services.
In 1686 a table of attorney’s fees was established by the Andros regime, and attorneys were obliged, upon admission to the bar, to take an oath.48 These seem like strange requirements if there were no professional lawyers. The first five to take the oath, Giles Masters, Nathaniel Thomas, Anthony Checkley, Christopher Webb, and John Watson, have never been carefully studied. Whether or not they had any formal legal training, the oath was an important step toward some professional structure.49
More important, it is now established that the court records, at least those that have been examined from Essex and Suffolk, contain many names of those purporting to act as “attornies” during this period. Some names occur very frequently, and it can be shown that they were more than agents or “attorneys-in-fact,” at least in the few cases that have been closely examined.50 Chroust, while apparently acknowledging this fact, claims that “none of these men . . . could be called lawyers in England, and some of them were probably the persons whom Governor Winthrop had in mind when he referred to attorneys as ‘mean men.’”51 But Chroust gives no conclusive evidence for this view, while an examination of the few known lawyer discipline cases—such as that of Daniell Ela for charging excessive fees in 1669, and of Peter Goulding, barred from pleading any cause but his own for “antedating writings” and stirring up vexatious litigation in 1680—merely confirm that law practice for money was indeed taking place, and that there were abuses, some not unfamiliar to our “modern” profession.52
More convincing are the conclusions of Zechariah Chafee, Jr., albeit limited to his study of the Suffolk County Court records from 1671–1680. Chafee found that “There can be no question . . . that many of the attorneys in the cases which follow, do correspond to the lawyers of today” and that “technical arguments in many of the Reasons of Appeal and answers show that they were written by men accustomed to legal problems.”53 Not only do specific names “keep recurring with varying principal [clients]” but, despite the lack of systematic professional training, the records demonstrate skill in litigation.54 Equally important, the instruments contained in the records—including complex leases, deeds, indentures, bonds, partnership articles, charter-parties, bills of lading, and trusts—were impressive. One set of instruments, trust deeds for the benefit of creditors executed in 1659, were said to be “made by the advice and councell of one whose judgment in the law was accoumpted a bond.”55 Chafee emphasized that “conveyancing, a phase of the modern lawyer’s work no less important than appearing in court, was also well developed.”56
In this book, Thomas G. Barnes completely demolishes the “accepted” picture of Thomas Lechford as an unsuccessful pettifogger.57 The desire of orthodox bar historians to see an evolutionary “rise” over time in the legal profession appears to have blinded some to the actual state of the profession during this second period as well.58 At the very least, more genuine research in the original sources is required.
Finally, Chafee’s analysis of the Suffolk records challenged “the view that Massachusetts remained until after 1700 in a period of rude, untechnical, popular law.” “Before the colony was half a century old, its courts are shown busy with trusts for the benefit of creditors and their annulment for fraud, difficult questions of inheritance, and complex mercantile transactions afloat and ashore.”59 Chafee also raised the possibility that reliance on some forms of English law—particularly in drafting instruments—may have been greater than often assumed, and that slavish attachment to scriptural “laws” was, at least by this period, a myth.60
Much, however, remains to be done. Assumptions regarding the state of law and the legal system during this 1648 to 1691 period are fundamental to some of the most important theories about the development of American law,61 but we really know very little about it. Not only are many court records unexamined, but the significance of colonial statutory drafting and the contribution of Calvinist theology to colonial jurisprudence remain largely unexplored.62
Fortunately, the work of David T. Konig and Barbara A. Black, building on that of Joseph H. Smith and Zechariah Chafee, Jr., points the way. Equally important, the archival advances described in this volume by Robert J. Brink, William E. Nelson, Michael S. Hindus, and Catherine S. Menand should make the task easier and ultimately more accurate.63 In my opinion, such work will establish that legal process was critically important during the period 1649–1691, particularly in dealing with the high rate of actual social change within the colony. As Barbara Black observes, “Once upon a time the historians of Massachusetts exhibited a tendency to concentrate on the beginning and the end, according short shrift to the middle. Founding and Revolution hypnotized us, and we leaped merrily from John Winthrop to John Adams. . . . Today, of course, the general history of this period is brightly illuminated. But the legal history is not. There the Age remains Dim, if not Dark.”64
III. The “Second Charter” Period: 1692–1760
Law in Colonial Massachusetts makes its primary contribution in analyzing this important period. The seventy years between the arrival of the Second Charter (1692) and the Writs of Assistance case (1760) saw greater social and economic change. The population exploded from roughly 44,000 (1691) to 280,000 (1765). The economic basis of the colony certainly shifted. Religious, social, and ethnic divisions multiplied, and basic changes occurred throughout the mechanics of governance.65 Three terrible small pox epidemics in 1720, 1729, and 1759 and a string of savage local wars against the French and Indians—King William’s War (1689–1697), Queen Anne’s War (1702–1713), the War of Jenkin’s Ear (1739–1748) and the French and Indian War (1754–1763)—caused cruel hardship and major dislocations in towns throughout the colony.66 We must ask what happened to the legal structure—to the lay magistrates, localism, the statutory systems, and the legal profession.
Half of the essays in this book make this period their special concern. Two, the essays of Barbara A. Black and Russell K. Osgood, examine entirely new data on lay magistrates—focusing respectively on the careers and records of Nathaniel Byfield of Bristol (1653–1733) and John Clark of Boston (1667–1728). Two more, by Douglas L. Jones and David H. Flaherty, focus on the law of coercive social control, namely poverty law and criminal law. Flaherty also examines the early history of the criminal bar, while Jones’ study of “warning out” records gives us new understanding of who the poor were and how they lived. Morris L. Cohen’s article continues to give new perspectives on the printed legal literature of the period, while Neal W. Allen’s study of the actual operation of courts in “The Eastern Parts” (Maine) adds flesh and blood to our knowledge of dispute resolution in local courts, of local court procedures, and of the personnel, both lay and professional, who were involved.
There are significant, unresolved historical questions about this period, too. The most obvious is the extent to which Puritan ideals and institutions survived the massive structural and social changes after the revocation of the First Charter.67 This is linked closely to a second question, the extent to which the sources of the law and the actual operation of the legal system changed. Was there still indigenous innovation in lawmaking? Were the lay magistrates still central to problems of social control? Was there a continuing contribution of theology to legal theory?
The work of John M. Murrin has stimulated debate on these questions. Murrin’s thesis is that the “American colonies experienced a rapid and pervasive Anglicization during the middle of the eighteenth century.”68 Murrin’s primary support for this thesis is the growth of the legal profession in Massachusetts during these years. According to Murrin, in the period 1692 to 1702 “the General Court adopted practically the entire court system of the hated Dominion.”69 The practicing bar, emerging from “the undistinguished reality of 1692,” grew around a nucleus of royal-sympathizers, like Thomas Newton, or out-right British imports, like John Menzies, a Scot, and John Valentine, an English immigrant. True, Anthony Checkley was a native, but even Checkley was, like Valentine and Newton, an Anglican.70 Murrin has concluded that the Revolution of 1775 “utterly reversed the trend of the whole previous century” and that—except for revolution—the “trend of the whole eighteenth century was not towards the common lawyer of the nineteenth, but away from the uncommon lawyer of the seventeenth and towards England’s hierarchical model instead.”71
This is a powerful and categorical thesis. It has important implications as to the nature of the American Revolution and the motives of the lawyers involved. Is it true, or is Daniel Boorstin right that the conditions in “pragmatic” America would have led inevitably to the structure of our current system and the values it represents, Revolution or not?72
The period 1691 to 1760 did see the establishment of a prosperous and powerful legal elite. Three increasingly prominent generations of true professionals came and went: first the generation of Thomas Newton, Paul Dudley, and John Read, followed by Jeremiah Gridley and Edmund Trowbridge; then the generation of their protégés, Benjamin Prat, Samuel Fitch, and James Otis, Jr.; and finally the generation of “household names”—John Adams, Josiah Quincy, Samuel Quincy, Robert Treat Paine, and William Cushing. These critical generations saw the first professionally trained judges, such as Benjamin Lynde, the first major professional law libraries, the first attempt at law reporting (Quincy), the first bar associations, the first regular appointment of counsel in criminal cases, the first attempts to formalize an indigenous legal training program, and the first attempts to establish hierarchial professional monopolies.73
The bar was beginning to demonstrate economic success, political power, and social prestige. The first problem, of course, is why and how this occurred. Was it the inevitable result of the social and economic conditions? Was it “Anglicization”? What did this development owe to the sixty years of colonial legal development that came before? A second, and perhaps more interesting question is whose interests did these developments serve? Who were the clients? Did this professional class serve royal power, indigenous entrepreneurs, the church, the towns and cities, the poor and accused, the “average person”?
Barbara A. Black’s article leaves no doubt but that complex civil litigation had come of age by 1730 and that indigenous entrepreneurs, like Nathaniel Byfield, used both the legal process and professional lawyers ruthlessly to pursue their political and financial ends. Russell K. Osgood looks at a different stratum of society. Working from an important new discovery—a hitherto unknown judicial notebook of a magistrate in Boston’s North End covering the period 1700 to 1726 with 1,379 entries—Osgood describes the continuing social control function of the lay magistrate in the rapidly developing city. The picture is limited to the bottom levels of society—and to petty crime and small claims—but is all the more interesting for that. From the pages of the notebook emerge sailors, abused women, blacks, the poor, and the small businessmen of an increasingly diverse and fragmented society.74 Osgood finds that the old lay magistrate ideal proved durable in these new conditions, and he sheds important light on colonial society, sources of the law, and the use of law to ensure social order.
Douglas L. Jones’ article, “The Transformation of the Law of Poverty in Eighteenth Century Massachusetts,” continues the focus on lay justice, localism, and the harsh reality of life for the poor. His thesis—that the dramatic increase in poor and dependent people during this period resulted in a redefinition of the “law of poverty”—has important implications. In particular, Jones maintains that the earlier systems of private, local, and religious charity, administered by selectmen, overseers of the poor and the general sessions of the peace, were unable to cope with the new challenges. New balances between the need for welfare and for social control of “strolling poor” were worked out, as formal institutionalization emerged as a major alternative to old concepts of custodial care through placement with individual families. Jones describes the development of the almshouse and workhouse, and the restructuring of the system by both court supervision of disputes and new legislation. The gradual decriminalization of transiency and the linking up of social control directly with the provision of institutionalized welfare was a major change in the public attitude toward poverty and the position of the poor in the legal system. Most striking, the major reforms before and after the Revolution appear part of an unbroken development culminating in the revised Poor Law of 1794. The Revolution itself appears to have made little difference, except that the war’s economic dislocations heightened concern over defining and controlling transients and deciding who would pay their welfare bills. The Poor Law of 1794 was “the resolution of a long history of tension over the allocation of economic resources for poor relief and the control of transients.”75
David H. Flaherty’s article, “Criminal Practice in Provincial Massachusetts,” provides a wealth of detail about criminal law doctrine and the court structure for prosecuting crime. It particularly focuses on the careers of leading criminal lawyers. Flaherty establishes that “[a]fter the creation of the superior court, a small number of lawyers were seemingly present at each session” and were definitely employed in criminal cases.76 By reviewing these cases, Flaherty paints an intriguing picture of these lawyers, who they were, who their criminal clients were, and what the lawyers could do for them. He demonstrates that this bar consisted of about eleven attorneys, and had elite members—such as Thomas Newton, John Valentine, John Read, Robert Auchmuty, and John Overing—who were highly competent and highly regarded, even before 1720. Flaherty’s conclusion challenges views that the early eighteenth century bar was incompetent, unpopular, or only represented the rich. “[M]ost defendants at the assizes, except for the most indigent, probably could afford to retain defense counsel.”77 Further, the “innovation of allowing unrestricted use of defense counsel”—a remarkable Massachusetts development—meant that “[b]y the middle of the eighteenth century persons in Massachusetts accused of a serious crime were in the fortunate position of having talented defense counsel available.”78
But what about the countryside away from Boston? Neal W. Allen’s powerful description of legal authority in the rural country, “Law and Authority to the Eastward: Maine Courts, Magistrates, and Lawyers, 1690–1730,” answers this critical question. Complementing Osgood’s work on the urban magistrate’s role, Allen confirms the tremendous versatility and tenacity of the rural lay magistracy. He also carefully traces the development of professional legal practice in Maine. Maine was a rough place, with refugees from Indian raids “that threatened to weaken dangerously the fragile and extended defenses of the eastern settlements.”79 The earliest lawyers were largely “unprofessional,” linked with “the equally unprofessional judges by family and business.” But lawyers there were, and at least eight were admitted and sworn soon after the 1701 “Act Relating to Attorneys.” Moreover, lawyers came up from Boston for big cases—“elite” names like Paul Dudley, Thomas Newton, John Valentine, and Addington Davenport, and all this before 1720. Finally, there were many humble people of a “practical bent” who acted as agents or gave legal advice, and, on the other extreme of society, “those more eminent men [sworn or unsworn] who, usually officeholders themselves, also served on the side as advisers, as drafters of legal papers, and as givers of legal opinions.”80
Allen’s detailed reconstruction of a day in the “Court of General Sessions of the Peace for York,” namely 6 July 1725, describes both cases which were routinely resolved without any professional input, and those in which counsel were retained and appeals taken to higher authority. The scope of the magistrates’ responsibilities—including supervision and granting of tavern licenses, deciding civil and criminal cases of every variety, setting assessments for villages ravaged by the Indian wars, and maintaining the highways—is simply astonishing. Cases involved issues as different as common drunkenness, religious dissent, and serious contempt charges resulting from disruption of town meetings. Yet they were all decided at the same time and place. Further, the standard of legal procedure appeared quite high in the serious cases, and hired counsel were active in important matters, including the drafting of reasons of appeal.81 The final picture is not one of rampant “Anglicization,” nor of primitive Puritan communalism. Rather, it is of a remarkably efficient, practical, and surprisingly legalistic system that had deep American roots, even in 1725. As Allen observes:
Not all the participants of events on that day would have found appealing the idea of a future American democracy. But all shared in a legal tradition whose roots went deep. Unruly and “rude” they often appear in these records, but the institutional framework and the inherited traditions gave force and meaning to the idea that law ruled.82
There is one last feature of this period which has never received proper attention, the legislation. Morris L. Cohen’s conference essay emphasizes the scale of its printed production. The years 1692 to 1742 saw one hundred and forty-six separate issues of the Laws and Orders of the General Court, and the years 1742 to 1775 saw two hundred and eight issues of Acts and Laws. “Government printing was an established practice in the colony. Virtually all of it was legal in nature.”83 Seven reprintings of the Charter occurred (1689, 1692, 1699, 1725, 1742, 1759, 1775), five compilations of the Charter, Acts and Laws (1699, 1714, 1726, 1742, 1759), three collections of Temporary Acts and Laws (1742, 1755, 1763) and, from 1715 to 1774, one hundred and fifty separate issues of the Journal of the House of Representatives.84 Yet the number of reprints of English treatises was very scanty, and no English statutes, law reports or collections of state papers were printed in the colony.85 Importation of English treatises may have been the answer, but “[a]lthough the publication of technical and doctrinal legal treatises was substantial in England in this period, none was reissued in Massachusetts.”86 This certainly raises doubts about the extent of “Anglicization.”
More significantly, the substance of the legislation has been inadequately studied. It was the law of Massachusetts, not of England. The legalism of the Puritan tradition, which turned in its earliest days to codification, continued under the Second Charter in the production of statutes. Massachusetts was, of course, one of His Majesty’s provinces but, as its statutory order made explicit, it also stood apart, legally.87
IV. The “Revolutionary Period”: 1760–1789
James Otis’ fiery polemics in the Writs of Assistance case, argued in February 1761, left a young, rather awed John Adams convinced that things would never be the same.88 Indeed, by the time of the 1765 Stamp Act every legal institution in Massachusetts was becoming distracted by the approaching political crisis, and by the time of the Boston Massacre of 1770 most active lawyers were forced to take a political position of some kind.89
The impact on the legal system was inevitable. One can call the American Revolution “conservative and non-socially disruptive” and question whether, except for the disruptions of the war itself, there was any fundamental social or economic impact that would not have occurred in all events.90 But it cannot be seriously doubted that the Revolution hit hard at the unity of the bar, and that it accelerated new political and legal ideas.
The rival political ideologies all invoked concepts of legal order. In the pre-Revolutionary maneuvers and propaganda, the whigs invoked the local gods: the “tradition of local government—the magistrates, the grand and traverse jurors, the representatives to the general court, and the citizens in their town meetings,” and the tories invoked the Anglican gods of parliamentary supremacy and “imperial law.”91 As John Reid put it, “law played an all-pervasive . . . role . . . both sides of the political debate were committed to the forms of law.”92 Some, like George Dargo, have gone so far as to call it “a lawyers’ revolution.”93
But the effects of revolution on the law and the bar were surprisingly “uneven.”94 For example, consider one of the terrible ironies of the war, the direct personal effects on the elite bar. Life-long friends, even brothers, were torn apart. Consider lawyers such as John Adams, Josiah Quincy, Samuel Quincy, Samuel Fitch, Daniel Leonard, and Jonathan Sewall, men who belonged to the same select dining clubs and who pursued the same policies for increasing the “professionalism” and meritocracy of the bar.95 Many of their plans, such as attempts to establish regular “progressions” of legal training (1769), to suppress unauthorized practice (1765–1768), to found a formal Suffolk bar association (3 January 1770), and to adopt uniform regulation with Essex and other counties (1771), were pursued together to the very outbreak of hostilities.96
But then they were dramatically and terribly sundered. Most of the loyalists—nearly half the profession—left to permanent exile in Halifax, the West Indies, and England. The Superior Court too was decimated, with only one survivor, William Cushing, of the original five.97 Yet, during the war itself, every effort was made to shore up the legal institutions and few opportunities were lost “to attempt to induce respect for all lawfully constituted authority.”98 Indeed, within ten years after the hostilities were over, the phenomenal growth of the legal profession had resumed, and the growing importance of lawyers and legal education certainly was anchored, at least in part, on the professional foundations laid just before the war.99 True, as Murrin would argue, the form of the profession and the courts might not have been exactly the same, but the consolidation of professional power missed only a beat.100
There were other ironies. Whole forests have literally been destroyed to publish histories of this period; yet, as Reid correctly observes, “historians have largely neglected or not understood the role played by law in both setting the stage for rebellion and formulating the conditions under which it would be fought.”101 Reid’s In a Defiant Stance (London, 1977) and Gerard Gawalt’s The Promise of Power (London, 1979) have done much to fill this gap, but important, nagging questions remain. Was the prominent role of Massachusetts in the Revolution because of, or despite, its traditions of legalism and its legal profession? To what extent were legal disputes and controversies about the nature of law the cause of ultimate revolution, as opposed to being simply the means and vehicles of political conflict?102 Some scholars have called the Boston mob a “quasi-legal” institution.103 Is it true that there was “no evidence of a deterioration of respect for law,” even at the height of political dislocation, and “no quarrel with the quality of local justice”?104 Finally, Gerard Gawalt and George Dargo have presented compelling evidence that the Revolution opened up unprecedented “new vistas” of power and wealth for Massachusetts lawyers, even in an astonishingly short time. By 1785 the losses of the loyalist exiles had been completely replaced by new lawyers, and by shortly after 1790, the total number of lawyers had doubled over 1765.105 The number of lawyers, according to one estimate, grew from 1783 to 1820 “four times faster than the general population, which itself was expanding at an enormous rate. . . .”106 It has been said that a central result of the American Revolution was a growth “of the power the legal profession exercised over the American mind.”107 If so, why?
Essential to approaching any of these major questions is a thorough understanding of the education, social composition, and politics of the Massachusetts bar at the outset of revolution. This is the purpose of Charles R. McKirdy’s essay “Massachusetts Lawyers on the Eve of the American Revolution: The State of the Profession.” To achieve this purpose, McKirdy first attempts a meaningful definition of a “professional,” and then applies this definition to analyze the entire known bar as of 1775. In the process, he provides biographical sketches of the eighty-one known lawyers practicing in Massachusetts in 1775 (Appendix IV), including all their known educational backgrounds, bar admissions, judicial positions, and political affiliations. This is an invaluable resource, complementing the biographical sketches in the Legal Papers of John Adams (Kinvin Wroth, Hiller Zobel eds., Cambridge, Mass., 1965). It also gives a complete “crosscut” of the profession at a single, crucial point in time. McKirdy also tabulates the occupation and education of Superior Court judges 1692–1774 (Appendix I), the professional choices of Harvard graduates 1642–1760 (Appendix II), and the geographical distribution of lawyers by bar admission “status” and political loyalty (Appendix III). This is exactly the kind of empirical data needed to test conjecture about lawyers at this critical time.
Some of McKirdy’s conclusions are really surprising. In particular, the late development of the colonial bar does not really follow Murrin’s thesis of “Anglicization,” but supports Boorstin’s view of an indigenous—and somewhat peculiar—“professional” ideal.108 “If these [colonial] lawyers were part professionals, they also were part free-wheeling legal entrepreneurs.”109 Further, the extraordinary post-Revolutionary gains of the profession, as emphasized by Gawalt, seem to have been founded on professional advances achieved by the Massachusetts bar right through the pre-Revolutionary period, with patriot and tory lawyers working side by side until the war. The emphasis seems to be on the process of “professionalization” itself—which McKirdy subjects to careful analysis.110 This analysis assists in explaining why the legal profession recovered so quickly after the war, and why major advances in professional education, such as the famous Litchfield Law School (1784) and Wythe’s Law School in Virginia (1779), and Van Schaak’s Law School in New York (1786), could have occurred so soon.
My own article, “Justinian in Braintree: John Adams, Civilian Learning, and Legal Elitism, 1758–1775” has a more limited scope: it focuses on the legal education, early practice, and legal ideology of only one lawyer—John Adams. But, thanks to the work of the editors of the Adams papers, his career and writings cast a particularly detailed and vivid—if not utterly unprejudiced—light on this critical time. My conclusions support those of McKirdy and Gawalt, that the development of professional identity went to the edge of conflict—and emphasized notions of meritocracy and elitism now familiar to the most powerful sectors of the modern bar.111 I also find support for the conclusions of John Reid that the participation of lawyers in the Revolution followed predetermined paths based on their legal ideology, and support for Daniel Boorstin’s conclusion that these paths were particularly American.112 In Adams’ case, the significant influence of classical civil law jurisprudence on his education, his early law practice, and his intellectual life with other lawyers had profound repercussions in his professional and political acts—including the foundation of the Suffolk bar association and Adams’ important “Novanglus” exchange with Daniel Leonard, later described as the “climactic duel” of the competing legal models.113
There was also a hidden agenda. I have been led by Perry Miller to believe that shared legal education and professional identity among lawyers can create ideologies that are peculiar to them—and which are not necessarily predetermined by the economic motives of their clients or by political forces.114 Indeed, this legal ideology itself can help to shape political and economic events.115 My article attempts to demonstrate, in a very limited way, how this occurred in the early professional life of a most important American.116
The Revolution presents one final, immensely difficult problem for legal history. What direct effect did the Revolution have on the sources of American law and the development of American legal doctrines and legal institutions? There certainly have been theories enough for all. John Murrin’s important thesis focuses solely on the bench and the bar and finds that Massachusetts was experiencing “rapid and pervasive Anglicization,” cut off only by the trauma of the war.117 Morton Horwitz, in his famous and original book, Transformation of American Law, 1780–1860 (Cambridge, Mass., 1977), sets out a different thesis. Looking solely at doctrine, he perceives a period of stability right up to and through the Revolution.118 There was, to be sure, an “inevitable and rapid reception of the body of English common law,” but only on the terms of the Americans and almost solely by local statute, not judicial activism.119 Real legal change occurred only after the Revolution, with the breakdown of the “eighteenth century conception of law” and the emergence of an “instrumental conception of law,” in which courts undertook, for the first time, to narrow the province of the jury and to undertake an “innovative and transforming role.”120
Central to all discussions in this area have been the research and analysis of William E. Nelson. A pioneer in the use of unpublished court records—as opposed to relying exclusively on statutes and reported decisions and treatises—Nelson has concentrated on Massachusetts. His central thesis emphasizes the roles of judges and juries in the trial of cases. Nelson argues, in contrast to Murrin, that the pre-Revolutionary period saw the increasing power of juries, both in fact-finding and law-finding, the de-emphasis of special pleading, a limited role for judges, and a strong sense of local indigenous justice. The Revolution brought fundamental change in the form of new aspirations and a new focus on equality and freedom.
Massachusetts, in short, had been transformed from a society where men with stable places in the economy concentrated on pursuing ethical ends to a society where economic place was uncertain and many men used their wealth chiefly for the purpose of acquiring even greater wealth. The pre-revolutionary legal system, in which community was the primary social value, had largely been destroyed. A new system emphasizing rugged individualism . . . had begun to take its place.121
This important thesis, announced in Nelson’s Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760–1830 (Cambridge, Mass., 1975), emphasizes that the change was in the social values of the people, as reflected in the legal system, as well as in the convictions of judges as to the nature of common law and the proper role of the courts and juries. Although Horwitz stresses “instrumentalism” and Nelson, “centralization,” both agree that the attitude of lawyers and judges changed in a fundamental way, and both agree that economic factors played a central role in this change. Nelson, however, also emphasizes a factor that could be totally unrelated to economics, but highly important—namely, personal freedom on a private, individual basis, including freedom of religion.
Since his first book, Nelson has developed his thesis further in a second important book, Dispute and Conflict Resolution in Plymouth County, Massachusetts 1725–1825 (Chapel Hill, 1981), again making unprecedented use of original materials. This book also establishes an enviable standard for the use of court records—and its boldness and originality will inspire other scholars to test Nelson’s conclusions about the social role of colonial law and the ultimate focus of change.122
Nelson’s conference paper, “The American Revolution and the Emergence of Modern Doctrines of Federalism and Conflict of Laws,” continues to break important new ground in understanding the legal effects of the Revolution. Nelson tackles a problem central to any federation of sovereign states—how conflicts in legal doctrine are to be resolved. “[T] he logical solution both for federal-state and for interstate conflicts was that conceived by the framers—to place a Supreme Court administering a supreme law atop the national judicial structure with a mandate to resolve all intercourt conflicts.”123 This “logical” system was also related to the English doctrine. In England, choice-of-court normally meant choice-of-law, and jurisdictional disputes between competing courts were, ideally, resolved by the supervising jurisdiction of the King’s Bench which, as Blackstone explained, applied “one uniform rule” which kept “all inferior jurisdictions within the bounds of their authority.”124
But this solution was not adopted. Instead, the power to resolve conflict of laws questions became vested in the state courts. Nelson believes that this rather surprising result occurred because of other features of colonial law. “British North America possessed no unifying institutions resting atop a hierarchy of local institutions: the common law, which was at the top of the hierarchy and therefore curbed local independence in England, was at the bottom of the hierarchy and thereby had potentially the opposite effect in America.”125 Nelson’s thesis, brilliantly developed by analysis of all known early conflicts cases, has many implications in explaining the nature of legal change after the Revolution—and the ultimate triumph of American localism which “continues by an inertia to influence [the doctrine of conflict of laws] today.”126
I regard the three conference essays on the revolutionary period—McKirdy’s, Nelson’s, and my own—as illustrating the complementary function of empirical professional research, ideological studies, and doctrinal analysis. Taken together, particularly in the context of interpreting original records, these methods offer much toward a better understanding of the effects of the Revolution on American law.127
There is still a tremendous amount to learn. In particular, all of the leading scholarly theories about the effect of the Revolution on the legal system depend on assumptions about the prior colonial system, including aspects of the Second Charter period about which we know almost nothing. There are thousands of essentially unexamined records, and, again, even the important statutes of the Second Charter period have never been thoroughly analyzed.128 Further, the dramatic religious changes of Second Charter society—both inside and outside the established church—have not been adequately examined for their impact on the ideal of community and on legal change.129 Nor has the legal profession been studied in connection with such serious post-Revolutionary upheavals as Shays’ Rebellion—which directly involved the courts and the law. But the essays in this book should point the way.
V. Conclusion: “The Countenance of Authoritie”
There is a true story about that much abused royal governor and amateur historian, Thomas Hutchinson. The manuscript papers of his big historical project, The History of the Colony and Province of Massachusetts-Bay, were pulled from the mud after a devastating home “visit” in 1765 by a ransacking mob. In 1769 he wrote: “He who rescues from oblivion interesting historical facts is beneficial to posterity as well as his contemporaries and the prospect thereof to a benevolent mind causes that employment to be agreeable and pleasant which otherwise would be irksome and painful.”130 Hutchinson, a veteran of many bitter controversies, was doubtless unaware that he was joining yet another—the incessant debate over the purpose of history.131
“Legal” history has always been the special subject of controversy. Indeed, renaissance lawyers can make claim to the dubious distinction of inventing the “historicist fallacy,” the idea that scientific study of the past can discover first principles “which will not only explain the present but reveal the future.”132 This notion stands in direct opposition to the idea that the study of history must be just an end unto itself, an idea tagged as “pure antiquarianism” by its detractors.
Lawyers have traditionally had a “pervasive fear of antiquarianism,” probably because it appears to be—practically speaking—a waste of time.133 On the other hand, it has been said that lawyers are especially susceptible to the “historicist fallacy” because they are in the business of predicting outcomes and legitimizing them. A rejection of both the “historicist fallacy” and pure “antiquarianism” leaves legal historians with an interesting problem of how to justify their existence, particularly to the legal community. As Felix Gilbert put it: “But what is our situation, for we believe neither in history as a means of teaching ethical values nor in the possibility of discovering laws to determine the process of world history?”134
I would like to suggest two answers to this dilemma, both well illustrated by this book. First, to the extent that the study of history is regarded as an end unto itself, there has been too little attention paid to the impact of legal ideas and legal institutions on the course of political, social, and economic events. The colonial history of Massachusetts is a prime example, and the essays in this book demonstrate the kind of benefits to be realized. Of course, as Michael S. Hindus has emphasized, not all power is “legal,” nor can an isolated study of legal doctrine give a complete picture of anything, much less an operational legal system.135 But, as this book illustrates, the old shibboleths dividing legal history from social history, political history, intellectual history, and economic history are crumbling, and cross-disciplinary cooperation is beginning to yield new insights into the past as it was.
But I am unwilling to stop with this relatively safe, limited answer. The reason is that I believe, and believe deeply, that the relationship between legal history and modern legal scholarship is a “special relationship” and, like most “special relationships,” it is full of passion and danger. First, there is the relationship of historicism to modern legal scholarship and professional education. In particular, as Robert Gordon has brilliantly explained, any profession that attempts to legitimize existing procedures or rules will be tempted to demonstrate that such systems are inevitable, or are justified by “universal rationalizing principles.”136 Christopher Columbus Langdell, who established the model of “scientific” legal education that has dominated generations of American law students, was probably sitting in the front row of the audience when Oliver Wendell Holmes, Jr., warned that “[t]he life of the law has not been logic, it has been experience.”137
Holmes was not just warning Langdell. He was warning all of us that our attempts to rationalize legal rules are “contingent” on the particular social and historical conditions of the times.138 Gordon has suggested that lawyers and legal scholars avoid a frank recognition of this fact, as it threatens to expose the ideological and political assumptions of the law, and to weaken what John Winthrop would call the “Countenance of Authoritie.”139 But authority in a free society should be able to tolerate such scrutiny, and defend its legitimacy.
This second point gets me to my “bottom line.” The major task of history is to make us aware of the character of our own times by seeing it in comparison and by contrast with others. This is especially true of the character of our law and legal system, our “Countenance of Authoritie.” As Gilmore puts it:
[T]he historian who shows us that what in fact happened need not have happened the way it did or need not have happened at all enriches our understanding of the past and, consequently, puts us in a position where we can deal more rationally with the infinitely complex problems which confront us. The argument that historical study which has no direct and immediate relevance to our present condition is “mere antiquarianism” is simply another aspect of the historicist fallacy.140
This has been demonstrated again and again by the insights of the contributors to this book. Whether the context be early professional history, lay judges, the use of the law to control the poor and provide welfare, early criminal law, the rights of defendants, the ideological background of lawyers approaching a revolution, or how an “illogical” doctrine developed to resolve conflict of laws, the benefits are better perspectives on our own hidden agendas and assumptions.
Clifford Shipton has observed that “Massachusetts in her first century and a half was an ideal proving ground for the principles on which our democratic way of life rests.”141 This is not to say the picture was always pretty, or progressive—the ghosts of the Antinomians, of Anne Hutchinson, of Mary Dyer, of the “strolling poor,” of the victims of “spectral testimony,” of the enslaved, of the dead on the streets of Boston and on the Green at Lexington—these do not represent triumphs of scientific jurisprudence or of human understanding. Yet, throughout all, a dominant theme of the colony’s development was a pursuit of, and adherence to, ideals of lawful authority. The traditions of local government, of lay justice, of legal representation, of social innovation through legal forms, of faith in the law—these things are more than part of our past—they are what Holmes would call our “experience,” the experience which remains at the very heart of what our law has become.142 To understand these failures and triumphs, to see them clearly and understand, remains important.
This volume was an obvious team effort. The editors, first and foremost, owe a great debt to the contributors. Their patience and effort, under what could be severe provocation, would be an inspiration to Job. This is not just true of the conference papers, but of the invaluable “sources” essays, which make this book of particular use to future scholars.
The conference behind the book was quite an event. The magic of the Bulfinch rooms and the beautiful fall weather on Beacon Hill, together with a truly civilized and distinguished audience, made it a “life-time” experience. All this, and the full support for the volume’s production, is a tribute to the generosity of the Colonial Society of Massachusetts. Very special mention is due to Sinclair H. Hitchings, an extraordinary friend, who organized the conference and the hospitality in every detail, down to the first true use of Beacon Hill’s largest silver wine cooler in at least a generation, and to William H. Bond and Lawrence Coolidge, whose leadership and generosity were vital. John Cushing and the Massachusetts Historical Society put on a splendid exhibition for the occasion. My tireless Harvard research assistant, John Monsky, was also of much assistance.
This conference could not have been held except for the pioneering record preservation efforts of the Supreme Judicial Court of Massachusetts, the oldest court with a continuous history in the United States. This is particularly due to the foresight of Chief Justice Edward F. Hennessey, for which he should be forgiven for occupying a position which, for nearly a third of its history, was entirely royal. His formation of the Massachusetts Judicial Records Committee, established in cooperation with that other extraordinary and historic institution, the Social Law Library, is making colonial record preservation a reality and not a dream.
It is no accident that two individuals at the heart of this “archival revolution” have also been absolutely essential to this book. Of course I am referring to the Assistant Editors, Catherine S. Menand, Chief Archivist of the Supreme Judicial Court, and Robert J. Brink, Special Projects Director of the Social Law Library, Director of the Colonial Court Records Project, and Secretary to the Judicial Records Committee. Their many acts of friendship have made working with them a most rewarding personal experience, and their expertise, their unflagging labor and their keen understanding of the colonial period have left their touch on every page of this book. I owe them the deepest thanks.
Finally, there is Frederick S. Allis, Jr., the Editor of Publications. Every recent Colonial Society volume—but especially this one—is a tribute to his experience, wisdom, and dedication. Endless hours together in the majestic, but chilly, offices of the Colonial Society have left me in genuine awe of his energy and patience, and deeply in his debt. He is a great teacher and a true friend. I can now understand fully why generations of Andover students love and respect this man.
Personally, special thanks are always due to Anna, Sophia, Julia and, most of all, Judith.
Daniel R. Coquillette
John Adams referred to the Sodalitas, the study group formed by Jeremiah Gridley in 1765 to discuss the law, as “A Clubb of Friends” and added that “I hope and expect to see . . . in consequence of this Sodality, a Purity, an Elegance, and a Spirit, surpassing any Thing that ever appeared in America.”
The essayists, editors, and conference participants represented in this volume are, in spirit, descendants of Adams’ and Gridley’s Sodalitas. In November 1981, this “Clubb of Friends” from around the country convened at the Colonial Society in Boston and engaged, with “Purity,” “Elegance,” and “Spirit,” in a lively exchange of ideas exploring colonial law in Massachusetts. In the long publication process which followed, editors and authors labored together to distill the essence of law in the colonial period, its personalities, procedures, and history.
As editors, we wish to express our deep appreciation to all the authors with whom we worked and, in particular, to Frederick S. Allis, Jr., the Editor of Publications for the Colonial Society.
But it is as members of the “Clubb of Friends” that we wish to record how much we enjoyed the editing of this volume under the direction of Daniel R. Coquillette. A man of wit and intellect, learned in the law, Dan is generous as well. He shared the pleasures of this book, structuring the work of editing so that we felt satisfaction and success as each phase of its production was completed. If he never spared us, shouting encouragement as he drove the project forward, he spared himself least of all. This volume is testimony to Dan’s unfailing attention to every detail and to his persistent sensitivity to the highest ideals of scholarship.
In the spirit of Sodalitas, we all hope that the substantive essays, combined with the guidance of the practical articles on sources, will help to stimulate further scholarship on colonial law “surpassing any Thing that ever appeared in America.”
Catherine S. Menand
Robert J. Brink