Peter Charles Hoffer. Law and People in Colonial America. Baltimore: Johns Hopkins University Press, 2019. xx + 203 pp. $32.95 (paper), ISBN 978-1-4214-3459-9.
Reviewed by Scott Gerber (Ohio Northern University)
Published on H-Early-America (June, 2021)
Commissioned by Troy Bickham (Texas A&M University)
A Third Crack at Surveying the Law of Colonial America: Gerber on Hoffer
Peter Charles Hoffer is a prolific historian of American law. The 2017 CV linked to his faculty web page at the University of Georgia lists thirty-two authored, co-authored, edited, and co-edited books. He has published at least ten books since 2017, including the one I have been asked to review: Law and People in Colonial America.
I am currently finishing a book about law and religion in colonial America, and I was delighted to be asked to review Hoffer’s survey of the law of colonial America, because I had consulted his book about the Salem witch trials for the Massachusetts chapter of my book project. Reading the new edition of Hoffer’s survey also allowed me to step back and take a “big picture” look at the period I was writing about.
The first edition of Law and People in Colonial America was published in 1992. Hoffer pursued two themes in the original edition: first, that early American lawmakers modified English criminal law to make it more humane and altered the civil law to produce greater equality; and second, that for most of the colonial era, little distinction existed between public law and private law. A revised edition followed in 1998 that added a chapter on Euro-Indian law and that incorporated into the existing text new material about gender, ethnicity, and non-English influences on colonial America. The 2019 second edition that is the subject of this review includes a new chapter on slave law.
Hoffer was smart to include the new material about slave law. As he correctly notes, "slavery has become a focus of early American legal historians" (p. ix). His nod to partisan politics is, however, unnecessary. He writes: "In these times of unrelenting, scathing partisanship in American politics, with race and racism never far from the maelstrom's center, it is worthwhile recognizing the origins and practices of colonial slave law" (p. ix). The new chapter deftly explores the invention of chattel slavery, slave law varietals, slave law and slave rebellion, the revolution in slave law, and the landmark British case of Somerset v. Stewart (1772) that held that chattel slavery was unsupported by the common law in England and Wales (although the position elsewhere in the British Empire was left ambiguous). The new chapter is seventeen pages long, and the entire text of Hoffer's book remains a modest 167 pages.
Hoffer’s survey is unquestionably and unabashedly a social history of the law of colonial America, and scholars and students—the book is primarily aimed at students—who approach legal history through the methodologies of economic, intellectual, political, or religious history may find the book too one-dimensional. But social history is far and away the dominant historical method of our day—with its close cousin cultural history snapping at its heels—and Hoffer can hardly be faulted for approaching his survey through social history.
Hoffer offered two cautions to the reader in the preface to the original edition of his survey of the law of colonial America: (1) “the scope and diversity of the subject matter of this book make generalizations necessary at the same time as they render generalizations hazardous” (pp. xix-xx), and (2) “Americans adopted much of the legal language of England even when they deviated from English legal practices” (p. xx). He repeats these cautions in the most recent edition.
Hoffer was wise to issue both cautions. With respect to the first caution, I found Hoffer’s decision to devote only two-and-a-half pages to matters of church and state difficult to accept. Putting aside that Hoffer’s book, like most books about colonial America, tends to focus too disproportionately on Massachusetts and Virginia, what Hoffer says about Massachusetts is problematic. For example, Hoffer omits entirely that in 1684 a proceeding in the King’s High Court of Chancery “vacated Cancelled and annihilated” Massachusetts Bay’s original corporate charter because of the colony’s unwillingness to adhere to the policies of the Stuart monarchs, including religious toleration.[1] In 1691 Massachusetts Bay was issued a new charter as a royal colony. The 1691 provincial charter required that “liberty of Conscience” be allowed “in the Worshipp of God to all Christians (Except Papists).”[2] If Hoffer had addressed at least some of the laws enacted and adjudicated during the provincial period, he would have seen that Massachusetts Bay’s Puritan standing order would not abandon the animating principle of Puritan Congregationalism without a fight, and that fight was waged in large part through statutes and court cases. In fact, it was not until 1833 that Massachusetts disestablished church and state through an amendment to the Massachusetts Constitution of 1780, the world’s oldest functioning written constitution. Surveys inevitably miss details such as these, and readers are therefore deprived of the richness and complexity that makes history both worth knowing and difficult to understand.
As far as Hoffer’s caution about the language of the law is concerned, he succeeds in steering clear of legalese. However, his caution raises a larger concern about whether a non-lawyer such as Hoffer can write accurate legal history. (I made a similar observation in a 2019 H-Net review of Paul Finkelman’s 2018 book, Supreme Injustice: Slavery in the Nation’s Highest Court). Richard B. Morris was forced to confront this question shortly after the publication of his 1930 dissertation on the development of the law of colonial America. The vitriolic tone of the answers he received likely drove him to the study of later periods and nonlegal topics. Morris was not trained as a lawyer and several giants of the law professoriate were not shy about reminding him of it. John Henry Beale of Harvard Law School made the point succinctly in a book review for the American Historical Review: Morris “cannot do his work … because he is not a lawyer.”[3] David Flaherty, in contrast, warned in a 1969 historiography of American colonial law that the “greatest danger is that the person writing legal history will not be a ‘historian.’” Flaherty believed that law professors wrote legal history that was “much too narrow” and that deficits in a historian’s knowledge of law could be overcome by a quick study of some basic law courses such as those Hoffer apparently took as a Liberal Arts Fellow at Harvard Law School in 1986-87.[4]
The sometimes caustic disciplinary divide over who is best qualified to write legal history demonstrates the wisdom of William E. Nelson and John Phillip Reid’s call in The Literature of American Legal History (1985) for evaluative standards that emphasize the impact a work makes on the field, rather than the particular reviewer’s personal preferences, methodological or otherwise. Hoffer’s survey largely succeeds on Nelson and Reid’s metric, especially because of the breadth of understanding of the colonial era it reveals. A review in the North Carolina Historical Review of the original 1992 edition referred to Law and People in Colonial America as a “pioneering book-length synthesis,” and the Pennsylvania Magazine of History and Biography called the original version a “milestone in the literature on early American law.”[5] (Other reviews were mixed.)
In conclusion, Peter Charles Hoffer is a historian who writes easily but perhaps too frequently. The bibliographic essay he includes in the back matter of Law and People in Colonial America remains largely as it was in the previous editions published two decades ago, with the notable exception of books written by himself and by his wife and son, both of whom are also accomplished legal historians. As Stanley Katz put in a brief introduction to a 1993 forum in the William and Mary Quarterly on law in early American history: “The participants in this Forum convince this former doubter that, at the very least, there is now ‘a Colonial Legal History.’”[6] I hope that a future edition of Hoffer’s enjoyable survey will include references to some of this important new work.
Notes
[1]. “Exemplification of the Judgment for Vacating the Charter of the Massachusetts Bay in New England,” in Collections of the Massachusetts Historical Society, vol. 2, 4th ser. (Boston: Massachusetts Historical Society, 1854), 246-78.
[2]. The Charter of Massachusetts Bay of 1691, https://avalon.law.yale.edu/17th_century/mass07.asp.
[3]. J. H. Beale, review of Studies in the History of American Law: With Special Reference to the Seventeenth and Eighteenth Centuries by Richard B. Morris, American Historical Review 35, no. 4 (1930): 921-22.
[4]. David H. Flaherty, “An Introduction to Early American Legal History,” in Essays in the History of Early American Law, ed. David H. Flaherty (Chapel Hill: University of North Carolina Press, 1969), 3, 34-35.
[5]. James L. Hunt, review of Law and People in Colonial America by Peter Charles Hoffer, North Carolina Historical Review 70, no. 1 (1993): 74-75; James D. Rice, review of Law and People in Colonial America by Peter Charles Hoffer, Pennsylvania Magazine of History and Biography 118, no. 1/2 (1994): 160-62.
[6]. Stanley N. Katz, “Introduction to Forum: Explaining the Law in Early American History,” William & Mary Quarterly 50, no. 1 (1993): 3-6.
If there is additional discussion of this review, you may access it through the network, at: https://networks.h-net.org/h-early-america.
Citation:
Scott Gerber. Review of Hoffer, Peter Charles, Law and People in Colonial America.
H-Early-America, H-Net Reviews.
June, 2021.
URL: http://www.h-net.org/reviews/showrev.php?id=56238
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