Court Records as Sources for Historical Writing

    COURT records are obviously the most useful kind of source material available to historians of the law. They are also, perhaps, the most promising untapped body of sources for historians of American social, economic, and institutional history. As Zechariah Chafee wrote, court records:

    have great value for historians, especially those who are seeking to learn how the colonists lived, acquired and managed property, and engaged in quarrels. An old author or newspaper often tells us disappointingly little about some of the most important features of human conduct at the time. The writer knew that such matters would be taken for granted by those for whom he was writing. In an old lawsuit, however, much less was taken for granted. The facts of everyday life had to be presented in the complaint or the testimony of witnesses, so as to let the judges know the nature of the dispute.1621

    Moreover, a surprising quantity of material is often readily available to historians without travel or other great expense. Much valuable data, for example, is often available at a law library associated with a historian’s university or at other nearby law libraries. Much manuscript material has been microfilmed by the Genealogical Society of Utah and can be obtained at the Society’s more than 150 branch libraries.1622

    This brief essay is designed to provide historians with a basic guide to the use of court records. First, it will take note of the kinds of data contained in court records that non-legal historians might find interesting. Second, the essay will provide an introductory sketch of the rules of pleading that a historian must understand in order to make use of court records. Finally, the essay will take note of certain major bibliographies that exist for New England court records.

    Data Contained in Court Records

    The Civil War in seventeenth-century England established a principle to which Anglo-American jurisdictions still adhere, that government may not coerce individuals either through bodily imprisonment or property seizures unless the government action is subject to review in an ordinary court of common law. The only exception to this principle occurs when martial law is imposed through suspension of the writ of habeas corpus.

    From the seventeenth until the nineteenth century, when England and America lacked the large-scale bureaucracies they possess today, this principle meant that government generally acted against a person by commencing either a civil or a criminal proceeding in a court of law.1623 Court records are accordingly the best source for studying the activities of government over that two-century period. Even today, when government bureaucrats often act on their own initiative without seeking the aid of a court, the fact that their actions are subject to judicial review makes court records a good source for learning the rules to which the executive branch of government is supposed to adhere.

    Obviously the historian of some institution of government, such as seventeenth-century municipality or an office such as that of sheriff, will find court records an invaluable collection of sources. There are also other ways in which institutional historians can find court records helpful. On occasion, for instance, court records will illustrate the impact of political acts, such as the Declaration of Independence, made by the highest levels of government. Thus court records tell us that “at the moment of their association, the United States necessarily became a body corporate” having “no superior from whom that character . . . [was] derived”1624 and that the commissions of certain local judges which, in October 1776, had not yet been “alter’d agreeable to the Act of Independency established by the Congress,” were void.1625

    A deeper understanding of the functioning of the courts, derived from study of court records, can give historians new perspectives on significant historical events. New England court records make it plain, for example, that juries in the eighteenth century had power to determine law as well as fact in the cases that came before them.1626 Knowledge of this power of juries, together with knowledge of eighteenth-century rules of jurisdiction, pleading, and procedure, gives a new perspective on the pre-Revolutionary struggle between American Whigs and the British imperial government in New England. It enables historians to see that the imperial government had legal limits on its power and that its enforcement failures may have stemmed more from those limits than from any incompetence on the part of imperial officials.1627

    Court records can be equally valuable for economic historians. Records contain considerable data about the kinds of money in circulation, the value of that money, and the value that litigants and, at times, a court or a jury place upon various commodities. Court records also reveal how law has been used to promote economic growth. Massachusetts records, for example, provide detailed information about the construction of the roads, canals, railroads, and mills that constituted the foundation on which the Commonwealth’s nineteenth-century economy was erected. Some court records may even provide information about the quality and quantity of economic growth occurring during some period in the past, as the work of J. Willard Hurst on the Wisconsin lumber industry suggests.1628

    Finally, the value of court records to social historians must not be overlooked. At least in New England, manuscript records normally contain information about the social rank or occupation of the litigants—information which makes it possible, for instance, to examine changing patterns of deference in seventeenth- and eighteenth-century society.1629 If a researcher has information from outside court records about the religious affiliation of individuals, the records also can be used to examine the relationship between Congregationalists and dissenters—to learn, for example, whether dissenters served as court officials or jurors and whether dissenters found themselves involved in litigation with Congregationalists.1630

    Common Law Rules of Pleading and Procedure

    Institutional, economic, and social historians can put old court records to significant use. But in order to do so they must know enough law to interpret the records properly. In particular, they must know common law rules of jurisdiction, pleading, and procedure which, until the second half of the nineteenth century, constituted the skeleton around which court records were constructed.

    The basic pattern in the American colonies was for three types of court to exist in any one geographical entity. One was the equivalent of the Court of General Sessions of the Peace in England, which had jurisdiction within a single county to engage in a wide variety of administrative activities and to hear all but the most serious criminal matters. A second court in a given locality typically would possess the jurisdiction of the Court of King’s Bench in England to hear disputes between individuals and the most serious criminal cases. Sometimes, as in Massachusetts, the jurisdiction of King’s Bench would be divided among two courts, with jurisdiction over serious crimes and appellate jurisdiction over civil disputes being reserved for the higher court and original typical jurisdiction over civil disputes reserved for the lower court. The third court in most localities was the one-man court of the justice of the peace, which heard petty civil and criminal cases. In addition, chancery courts existed in some colonies, together with admiralty courts prior to the Revolution, and various federal courts thereafter.1631

    48. Wax Seal from His Majesty’s Superior Court of Judicature for the Province of New Brunswick, found on documents delivered to the Massachusetts Courts in October 1758. Suffolk Files, Cabinet Collection No. 143101. Restored, Kathryn M. Carey. Courtesy, Supreme Judicial Court.

    This essay will focus on pleading and procedure in the Court of General Sessions and in courts having original jurisdiction over civil disputes. Most of what is said will be applicable, however, to proceedings before justices of the peace, who tended to mimic procedures of the higher courts, and to proceedings in nineteenth-century federal courts, which were required to follow the essentials of state procedure. Only admiralty and chancery courts followed procedures substantially different from those about to be described.

    Most of the administrative business of General Sessions is recorded in a straightforward manner that a historian with no legal training can readily understand. Whatever difficulties occur in understanding court records that deal with matters such as poor relief, road construction, local finance, licensing, and location of mills is just as likely to stem from not comprehending the technology or social reality of the past, as from not understanding its law. The technology involved in the construction and operation of mills can, in particular, be quite difficult to penetrate. Perhaps the only necessary warning to the historian who is about to use administrative records of a Sessions Court is to beware of assuming that all the orders issued by the Court were, in fact, carried out. Many court orders were simply never obeyed.

    Criminal business also tends to have been recorded in a readily comprehensible manner. Many of the common crimes of the seventeenth, eighteenth, and nineteenth centuries remain common and familiar today: homicide, rape, assault, theft, drunkenness, contempt of authority, and violation of license laws. Nor should a historian have any difficulty comprehending the meaning of adultery, sodomy, fornication, drunkenness, profanity, and breach of the sabbath, even though such activities rarely result in criminal prosecution today. Only a few technical concepts need to be mastered before using criminal records. One is the distinction between murder and manslaughter: the former is an intentional homicide committed with premeditation and deliberation, whereas the latter is an intentional homicide committed on the spur of the moment.1632 A second important concept is that of robbery, which is a taking of an item of value through the use of force. A third concept is burglary, which is the breaking and entering of a dwelling house in the nighttime with intent to commit any crime, whether it be theft or rape, therein. Burglary is to be distinguished from the lesser crime of breaking and entering, which may be deemed to occur if a structure is entered in the daytime, is not a dwelling house, or is entered without any specific criminal intent.

    The prospective user of criminal records requires warning that some of the language contained in pleadings will be fictitious in nature and ought not be taken literally. Consider, for example, a prosecution brought in colonial Massachusetts against one Anna Donham, accused of “being a person of ill fame, Character and conversation and having a wicked and diabolical intent to corrupt and debauch the morals of divers of his majesties subjects and to excite them to commit lewdness, Fornication and adultery with her.” She was accused more specifically of permitting an unknown man “to lay her down on her back on the floor of” a barn they had entered together and then “to lay himself upon her Body and to continue in that posture for the space of a quarter of an hour.” She was charged with similar behavior on other occasions, but she was not accused of having sexual intercourse with any man. The allegations against Anna Donham should not, however, be taken too literally. At the time of the events in question, her husband was “drawing near death.”1633 If she had had sexual intercourse with the unknown man, she would have been guilty of adultery—then and there a capital offense. Juries, however, generally refused to allow people to be executed for adultery; instead of returning a verdict of guilty of adultery, they would usually find a couple guilty only of lying together without having intercourse. In the Donham case the prosecutor simply obtained an indictment for an offense for which he might get a conviction. There is every reason, however, to believe that, despite the language of the indictment, she was guilty of adultery if she was guilty of anything.

    There is also little reason to believe the other allegations about Anna Donham’s intent and about her engaging in similar activities on other occasions. Such allegations were mere surplusage that the prosecution need not prove in order to obtain a conviction: the crime of lewdness is established merely by showing that a married person lay in an embrace in a secret place with a person of the opposite sex not his or her spouse. Indeed, it is quite common for criminal indictments to contain surplus, often ritualistic language, especially in assault cases, where exaggerated allegations of physical violence are not uncommon.

    The departures from social reality that have been noted are, however, insignificant ones that should not make it difficult for historians without legal training to use criminal and administrative court records. In civil litigation, on the other hand, the allegations appearing in the court records depart further from actual facts. The reason is that, until the procedural reforms of the mid-nineteenth century, civil litigants had to fit their cases within one of the common law forms of action. Each form of action was a precise pigeonhole broad enough to encompass only one type of case that a plaintiff might decide to bring. Under the common law writ system, a plaintiff had little flexibility in choosing the form of action he would bring. He had to bring the form appropriate to his claim, and he had to squeeze the facts of his case into the appropriate pigeonhole by casting those facts in the terminology proper for his chosen writ.

    By the end of the seventeenth century ejectment had become the most common writ used to litigate title to land. In ejectment a plaintiff was required to allege that he had the legal right to possession of the land and that John Doe, a person who had leased the land from him, had been ousted from possession by Richard Roe, who had acted on behalf of the defendant who, in turn, was now in possession of the land. The allegations of a lease to John Doe and ouster by Richard Roe are benchmarks of the writ of ejectment. Nonetheless, the historian should not take Doe and Roe seriously, for both were fictitious persons; the real essence of the writ of ejectment was merely that the plaintiff was the rightful possessor of the land in question but that the defendant was occupying it adversely to him.1634

    Another writ commonly used to litigate title to realty was the writ of entry. The basic allegation of the writ of entry was the existence of some recent, specified flaw in the defendant’s title: for example, that the defendant had purchased from some individual who had forcibly ousted the plaintiff from the land. Entry came in many varieties. In Maitland’s words:

    there is one applicable to almost every conceivable case in which a tenant has come to the land by some title in which a recent flaw can be pointed out—we hear e.g. of a form of action as a writ of entry “sur disseisin in the per” a writ of entry “sur disseisin in the per and cui.” In 1267 the Statute of Marlborough . . . in effect abolished the restrictions on the formation of writs of entry—but it only did this by adding to their number. If since the unlawful entry the land had passed through several hands a writ of entry “in the post” might be used—the demandant might allege that the tenant only had entry post (after) a disseisin committed by someone without showing how the land had passed from the disseisor to the tenant.1635

    Other actions for recovery of land that might occasionally be found in court records were writs of novel disseisin, mort d’ancestor, and dower and even writs of right. Another fairly frequent proceeding was the common recovery, a procedure used to bar what was known as an entail. An entail was a device by which a landowner granted land to a particular family line and attempted to prevent that family line from conveying the land outside the line. The common recovery was the device used by the person in the family line holding the land to convey the land to another. The procedure was for the purchaser of the land to bring a collusive suit, usually in ejectment, against the seller who, in fact, did not have a good title to sell. The seller would allege, however, that he did have a good title and he would call upon a fictitious person, typically John Doe or Richard Roe, to warrant his title. After the fictitious person had made the warranty, the seller would then default and the court would find that the purchaser had a full and complete title to the land. The person who held the right to the land following failure of the entail was effectively deprived of his rights by the common recovery, since he was permitted to sue only the fictitious person who had falsely warranted the defendant’s title for damages resulting from the false warranty.1636 Until entails were abolished legislatively after the American Revolution, common recoveries were not unusual in most American jurisdictions.

    One final writ that was also commonly used to litigate title to real estate was the writ of trespass. But before this use of trespass can be understood, it is first necessary to understand the three main functions of this writ.

    The first purpose for which a plaintiff would normally use the writ was to recover damages for a bodily injury. Such writs were adorned with formulary allegations, such as that a defendant “with Force and armes an assault on the Body of the Plantf Did Make and . . . with a Certain Club Did Strike the Plant on the Head and Beate him Down to the Ground and Drew Much Blood so that Life was Despared of.”1637 If a plaintiff won a suit founded on such a writ, a historian could be confident that the defendant had struck the plaintiff on the head with a club, but beyond that much is merely formulary allegation. The allegation of force and arms, for example, had to be made in order for a court to have jurisdiction over a writ of trespass, and hence the allegation will be found even in writs in which no armed force could conceivably have been used, such as in carriage collision cases or in cases involving the equivalent of modern medical malpractice. Another fictitious allegation made in every writ of trespass, including a portion of the above writ not quoted, was that the defendant acted “against the peace.”1638 This also was required for the old royal court jurisdiction in trespass. Some of the other allegations, such as the one that the defendant drew much blood or that the plaintiff’s life was despaired of, did not have to be pleaded in order for the court to have jurisdiction to hear the plaintiff’s suit, and thus their presence in the writ cannot be accounted for on the theory that they had to be there. But neither can the historian be confident that the allegations were true, since a plaintiff did not have to prove them in order to recover a verdict in his favor. The allegations are probably best understood as having been placed in the writ by the plaintiff’s lawyer when he was not yet fully cognizant of the facts of the case. Since the lawyer could offer in evidence only facts which had been previously pleaded, a lawyer who was drafting a pleading had to include whatever facts he might be able to prove at trial even if it subsequently happened that little of what he alleged had actually occurred.

    A second form of trespass was the quare clausum fregit form—trespass for breaking and entering the plaintiff’s close or parcel of land. In such a writ, a plaintiff in addition to formulary allegations claimed that he was in possession of land and that the defendant entered and interfered with his possession, as, for example, by cutting and taking away crops growing on the land. This second form of trespass could be used in effect to litigate title if the defendant instead of denying that he took the goods pleaded that he did take them because they were growing on his land. Then a jury would determine whether the land on which the crops were growing belonged to the plaintiff or the defendant—a determination that for most purposes would resolve the question of title.1639

    The third variety of trespass was the writ de bonis asportatis—for taking and carrying away the plaintiff’s goods. Again this variant of the writ will contain ritualistic allegations that the defendant acted with force and arms and against the peace of the king or later of the state, even though the only force required was that involved in physically taking possession of the plaintiff’s goods.1640 Again, the historian should be aware that a judgment in favor of the plaintiff does not necessarily establish the truth of every fact alleged in the recorded pleading. A plaintiff might, for example, have alleged the theft of 100 bushels of corn valued at $1.00 each and the jury might have returned a verdict for only $50.00, suggesting that only 50 bushels were taken or that each of the 100 bushels taken was worth only $ .50. Normally there is no way of knowing from pleadings alone what the precise facts of a case actually were, although a guess can be hazarded if a historian knows from other sources that a bushel of corn was worth, for instance, $ .50 at the time of the verdict.

    Trespass was not the only writ available by which a plaintiff could recover damages from a defendant who was in wrongful possession of the plaintiff’s goods. Another form of action available for that purpose was trover, which lay when a defendant had come into possession of goods lawfully but then retained them unlawfully. Trespass de bonis asportatis, it will be recalled, lay when a defendant came into possession of goods unlawfully. Hence trover did not contain a fictitious allegation that the defendant had acted with force and arms and against the peace. Instead, the plaintiff in trover always alleged fictitiously that he had “casually lost” his goods, that the defendant had subsequently “found” them, but that the defendant had refused to return them.1641

    If a plaintiff wanted to recover, not damages for the taking of his goods, but the goods themselves, he would bring either a writ of replevin or a writ of detinue. In both writs, a plaintiff had to allege and prove that he was entitled to possession of goods that were in the possession of the defendant at the time of the commencement of suit. In addition, in replevin he had to allege that the defendant had wrongfully taken the goods in question. In detinue, a plaintiff could recover the goods even if they had come into possession of the defendant lawfully and he had merely retained them unlawfully. Detinue, however, unlike replevin, would not lie to recover fungible goods like cattle or grain. It was available only to recover goods capable of being specifically identified.1642 If fungible goods were merely unlawfully retained by a defendant, a plaintiff’s only remedy was a suit for damages by way of a writ of trover.

    Various forms of the writ of trespass on the case, or simply case, lay to recover damages for torts or wrongful conduct by defendants. The special quality of the action on the writ of case was that it lay when no other writ was available to a plaintiff, but he nonetheless could allege facts for which he ought to have a remedy.1643 As a result, most varieties of the writ of case that were used to recover damages for torts contain little in the way of fictional pleading. In case, plaintiffs usually alleged only facts that the law required them to prove or that they hoped to prove. Hence a jury verdict in a plaintiff’s favor in a writ of case usually indicates that the facts pleaded in the writ were true.

    It is impossible to do more than mention the most common varieties of the writ of case for tort. One was case for defamation, where a plaintiff alleged injury to his reputation. Another was case for malicious prosecution. A third was case for negligence. A fourth was case for an indirect injury to a property right, such as the right to operate a mill. All of these forms of case, together with many others, usually contain straightforward allegations of fact which a historian with slight legal training should have little difficulty comprehending.

    So far, attention has focused on actions for recovery of land and goods and actions for what modern lawyers label tort. In addition, a whole series of forms of action existed to recover for what modern lawyers would label breach of contract. These contract actions, which contain a great deal of technical and often fictitious pleading, accounted for the overwhelming bulk of litigation in most American jurisdictions. To use court records effectively, historians must come to grips with them.

    Among the most ancient and least frequently used actions was the writ of covenant. Covenant lay when a defendant, in a written instrument to which he had attached his seal, promised to perform some act, other than giving some item of fixed value such as money, for the plaintiff and subsequently failed to perform. A plaintiff in covenant thus had to allege and prove the execution of a sealed instrument, the promise to perform some act of no fixed value such as building a house, and the breach of the promise.1644 Covenant was thus a straightforward form of action with little fictitious pleading. It applied, however, only to contracts of uncertain value executed with the formality of a seal and few such contracts were so executed at any time in American history. Writs of covenant, therefore, appear only occasionally in American court records.

    Another ancient action was the writ of debt on a bond. A bond, like a covenant, was an instrument to which a defendant had attached his seal, but unlike an instrument sued upon in covenant, a bond contained a promise to pay to the plaintiff something of fixed value, usually money. Bonds, unlike covenants, were often used by businessmen to formalize contracts, and court records therefore reveal a good deal of litigation over bonds.

    When a contract simply called upon a defendant to pay a sum of money, an action of debt on a bond was simple. A plaintiff merely pleaded execution of the bond under seal, the promise to pay the money due, and the nonpayment. Unless the defendant could prove that he did not execute the bond (in Latin, non est factum, or, as commonly translated into English, that it was “not his act and deed”), the court gave judgment for the plaintiff for the sum stated in the bond. If the defendant claimed that he rightfully owed less than the sum stated in the bond, the common law court which had heard the action of debt could not reduce the damages to the rightful sum. In England, a defendant had to bring a separate action in the High Court of Chancery to obtain a reduction of damages. In America, this particular equitable power was sometimes given by statute to common law courts. Nevertheless, once a defendant had lost an action of debt on a bond, he could obtain a reduction in damages only by petitioning a court with the appropriate equitable power to “chancer the bond.”

    Businessmen often used bonds, not to secure payment of a sum of money, but to secure performance of a promise of uncertain value. They sought, that is, to have a bond and the action of debt on the bond perform the work of a covenant and of the action of covenant. The method they used was to make the bond conditional. They did this by executing a bond under seal for a specified sum of money and then placing a provision on the back of the bond declaring it void if a specified act was performed. For example, a building contractor might promise to pay $10,000 unless he completed a specified construction job by a specified date. Indeed, a borrower might enter into a bond to pay $10,000 unless he returned the $5,000 he had borrowed plus interest to the lender by a specified date.

    Suits on conditional bonds produced court records of considerable complexity. Such records begin like all records of debt on a bond, with the plaintiff alleging the execution of the bond under seal, the promise to pay the sum due, and the nonpayment. But the defendant, instead of pleading non est factum or admitting his liability, would “pray oyer” of the condition of the bond—that is, he would ask to have the condition heard in open court. The condition on the back of the bond, which often details a business transaction of interest to economic historians, would then be read into the record, after which the defendant would plead performance of it. If he proved his plea, the case would end, but if he failed to prove it judgment would be given for the plaintiff subject to the defendant’s right to pray chancery of the bond. Normally defendants did petition the court to chancer the bond. When they did, further proceedings were held to determine the actual value of the act the defendant had failed to perform. Court records generally indicate at least the outcome of those proceedings.1645

    The action of debt was available not only against a defendant who had executed a bond under seal, but against any defendant who was indebted to a plaintiff for a fixed sum. The writ was commonly used against defendants who had become indebted to plaintiffs by virtue of statutes, such as the customs laws, imposing penalties for their breach. Such statutes typically divided the penalty among several persons, such as an informer, a public official, the crown, or later the state. Any person eligible to receive a portion of a penalty could bring the action of debt. In such actions, court records will usually describe the statute that was breached as well as the nature of the breach. Writs of debt were also commonly used to revive judgments which were not otherwise enforceable in the jurisdiction in which the writ was brought. Debt was also available for other purposes, but for reasons not germane to most users of American court records, its use for those purposes had become obsolete prior to the founding of the American colonies.1646

    The writ that made debt obsolete and became the principal vehicle for the litigation of matters of contract in America was assumpsit, a variety of the action of case. Some court records will refer to the action as assumpsit; other records will refer to it simply as case. Assumpsit, in turn, came in many varieties, and often a plaintiff joined several varieties together in one pleading, thereby saving to himself the possibility of proving that his transaction lay within whichever variety the evidence at trial fit best.

    The variety of assumpsit that had superseded debt by the early seventeenth century was indebitatus assumpsit. Translated this meant that the defendant, having become indebted to the plaintiff, assumed the obligation to pay what was owed. The allegation of a subsequent promise to pay was a fictitious one that the plaintiff did not have to prove at trial. Thus, indebitatus assumpsit lay whenever a defendant had become indebted—that is, whenever the writ of debt lay. Because plaintiffs found indebitatus assumpsit more advantageous procedurally, they brought it instead of debt.1647

    Indebitatus assumpsit itself had several varieties known as the common counts, which encapsulated the common sorts of ways in which one individual became indebted to another for a fixed sum. The common counts were (1) for money had and received to the defendant for his use, (2) for goods sold and delivered to the defendant, (3) for work done for the defendant, (4) for money lent to the defendant, and (5) for money paid by the plaintiff to a third party to the use of the defendant. At least by the nineteenth century, most American jurisdictions permitted plaintiffs to join these common counts, which overlapped, together alternatively in a single action. Thus a historian who finds in court records an action of assumpsit for $5 for money had and received, $5 for money lent, and $5 for money paid to the use of the defendant should recognize that only one $5 transaction between the parties had occurred and that the plaintiff’s lawyer, unsure of the category into which the facts would fit, was pleading the three common counts in the alternative so that he could prove whichever count turned out to be easiest to prove at trial.1648

    Another variety of assumpsit was special assumpsit, which lay whenever a defendant had made an express promise to make a payment or perform an act. The most common form of special assumpsit was assumpsit to recover on a promissory note, where the plaintiff had to plead and prove that the defendant had executed the note, that the note had been given in return for some valuable “consideration,” that the plaintiff had demanded payment, and that the defendant had refused to pay.1649 Special assumpsit also lay to enforce labor contracts. Two other frequent forms of special assumpsit were assumpsit on an account annexed to the writ, which lay when litigants had been keeping an account on sheets of paper which a plaintiff could attach to his writ, and assumpsit on a book account, which lay when the account was being kept in a book which could not be attached to the writ, but could be introduced in evidence at trial. These last two forms of special assumpsit were distinct from indebitatus assumpsit for goods sold and delivered and from older, medieval actions of account that occasionally appear in American court records.1650

    Two other forms of assumpsit known by the names quantum meruit and quantum valebant appear frequently in American records. They were brought when a defendant was indebted for an amount of money that was not fixed or precisely ascertainable. Quantum meruit lay when a plaintiff had performed services for a defendant and was seeking to recover as damages as much as he merited or deserved to have. Quantum valebant lay when a plaintiff had delivered goods and sought to recover as much as they were worth.1651

    The forms of action outlined above were by far the most common ones used in American courts prior to the procedural reforms of the mid-nineteenth century, after which plaintiffs were generally required merely to plead the facts they expected to prove at trial. A few words must still be said, however, about pleas available to defendants. Defensive pleas were essentially of three sorts. First were dilatory pleas which led merely to a dismissal of a plaintiff’s action, but normally did not bar him from reinstituting the action. Examples of dilatory pleas are pleas to the jurisdiction—that the plaintiff has brought his suit in the wrong court—and pleas in abatement, which allege some technical defect in the writ, such as that the plaintiff has misspelled the defendant’s name. A second possibility open to a defendant was a demurrer. In order to interpose a demurrer, a defendant had to admit the truth of all the allegations contained in the plaintiff’s writ. By his demurrer he contended, however, that even if all the plaintiff’s allegations were true, the law did not give him the remedy he sought. A defendant’s third option was a plea in bar. A plea in bar could take the form of a general denial, such as a plea to a writ of assumpsit that the defendant never promised, which had the effect of denying all the facts alleged by the plaintiff and submitting the case to the jury. Or a defendant could plead specially—that is, assert some new fact which he contended should bar the plaintiff’s recovery. If a defendant pleaded specially, the plaintiff could reply to his plea, the defendant could rebut the replication, and so forth.1652

    A historian who is familiar with the common writs used by plaintiffs and with the basic options open to defendants should have little difficulty reading court records in a knowledgeable fashion. If more detailed information is needed, the following sources are suggested:

    Fifoot, C. H. S. History and Sources of the Common Law: Tort and Contract (London, 1949).

    Still the best available collection of source materials on the history of tort and contract and on the development of the writs of trespass, case, and assumpsit. Some thoughtful commentary is appended to the sources.

    Horwitz, Morton J. The Transformation of American Law, 1780–1860 (Cambridge, Mass., 1977).

    Essentially a study of change in substantive American law, this book relates substantive change to change in the forms of action, especially in the fields of tort and contract.

    Konig, David T. “Editor’s Introduction,” in Plymouth Court Records, 1686–1859 (Wilmington, Del., 1978), i, 141–183.

    A useful summary written by a historian for other historians. It concerns the various common law forms found in the Plymouth, Mass., court records.

    Maitland, Frederic W. The Forms of Action at Common Law (Cambridge, 1936).

    This is the classic work on the forms of action, describing in less than a hundred pages how they developed and were used over time. A glossary of common writs is appended to Maitland’s text.

    Milsom, S. F. C. Historical Foundations of the Common Law (2d edition, London, 1981).

    Revises much of Maitland’s earlier work on the forms of action, especially in regard to the fields of tort and contract. Milsom’s is a large and deep book.

    Nelson, William E. Americanization of the Common Law, 1760–1830 (Cambridge, Mass., 1975).

    Like Horwitz’s, a study of substantive legal change over the period in question. Chapter 5 is the most detailed study yet published of how common law pleading worked in an American jurisdiction, and how it came to be abolished.

    Shipman, Benjamin I. Handbook of Common-Law Pleading (St. Paul, Minn., 3d ed. by Henry W. Ballantine, 1923).

    A detailed one-volume treatise on the rules of common law procedure as they stood at the end of the nineteenth century. The book was aimed primarily at an audience of law students seeking to learn the rules, and often fails to address historical questions.

    Simpson, A. W. B. An Introduction to the History of the Land Law (Oxford, 1961).

    The best up-to-date summary of the English law of real property and of the property writs. Third impression was in 1973.

    Bibliographies of New England Court Records

    William Jeffrey, Jr., Early New England Court Records: A Bibliography of Published Materials (Cambridge, Mass., 1954).

    A reasonably up-to-date list of published New England materials, with a brief statement of the contents of each. Two items not in print when the bibliography was prepared are David T. Konig, ed., Plymouth Court Records, 1686–1850, 16 vols. (Wilmington, Del., 1978–1982), and Joseph H. Smith, Colonial Justice in Western Massachusetts, 1639–1702: The Pynchon Court Record (Cambridge, Mass., 1961). Cf. William Jeffrey, Jr., “Early American Court Records—A Bibliography of Printed Materials: The Middle Colonies,” University of Cincinnati Law Review, xxxix (1970), 685–710.

    David H. Flaherty, “A Select Guide to the Manuscript Court Records of Colonial New England,” American Journal of Legal History, xi (1967), 107.

    An annotated list. Flaherty has also done a comparable list for Virginia. See David H. Flaherty, “A Select Guide to the Manuscript Court Records of Colonial Virginia,” American Journal of Legal History, xix (1975), 112.

    Catherine S. Menand, The Records of the Suffolk County Inferior Court (Boston, 1981).

    A guide to the Papers of the Suffolk County Inferior Court of Common Pleas in the custody of the Social Law Library, Boston, Massachusetts. Available at the Social Law Library, Boston, Massachusetts.

    Michael S. Hindus, Inventory and Guide to the Records of the Massachusetts Superior Court and Its Predecessors (Boston, 1977).

    An inventory of the location and contents of all major Massachusetts trial court records. Available at the Social Law Library, Boston, Massachusetts.

    Kathryn M. Carey, Catherine S. Menand, Supreme Judicial Court Records Preservation Laboratory (Boston, 1981).

    An archival and conservation analysis of the pre-1800 records of the Massachusetts courts. Available at the Social Law Library, Boston, Massachusetts.