Christopher L. Tomlins and Bruce H. Mann, eds.
The Many Legalities of Early America.
Published for the Omohundro Institute of Early American History and
Culture. Chapel Hill and London: University of North Carolina Press, 2001.
Index, notes on contributors. ix + 466 pp. $55.00 (cloth), ISBN
0-8078-4964-2 ISBN 0-8078-2633-4; $22.50 (paper, ISBN .
Lauren Benton , New Jersey Institute of Technology and Rutgers University.
Complexities: The Next New Legal History
In the conclusion to this fine collection of articles,
Bruce Mann remarks that the "new" legal history has by now become old. The
mutual influence of law and society is no longer a revelation. Yet, as
this volume demonstrates, we are not so much at the end of an era as at an
exciting beginning. The new, new legal history has much to teach us about
the pervasiveness of legal culture, its relation to cultural texts and the
social construction of power, and the centrality of legal-cultural
analysis to an understanding of the colonial past.
Nearly all the essays for this volume were presented at the
conference "The Many Legalities of Early America" held at the Omohundro
Institute of Early American History and Cultures in November, 1996. In
part as a result, there is more than a hint of overlapping perspective in
the essays collected here. The volume is further held together by the
editors' cogent introduction and conclusion, as well as by short pieces
leading off each of the book's four sections. Unlike many edited volumes,
then, this book can and should be read as a single work; also in contrast
to many such volumes, there is a gratifying consistency in the high
quality of the articles. There is not a clunker among them.
Of the many crosscutting themes, the one highlighted by
Tomlins in his introduction is the representation of early America as
comprising, in the title's phrasing, "many legalities." The phrase itself
carries multiple connotations. It refers in part to a more flexible
reading of the presence and influence of law; in part to a stronger claim
of the inherent pluralism of early American law; and in part to a
purposeful and explicit merging of discursive and institutional analysis.
One felicitous outcome is that the volume places the legal
history of early America firmly in the broader context of Atlantic and
comparative colonial histories. Turning the pages, one can hear the
dying gasps of exceptionalism in American legal history. The first section
begins this task by tracing trans-Atlantic currents. James Muldoon's
insightful lead essay on the roots in canon law of the rhetoric of North
American empire is followed by an important article by Mary Sarah Bilder
on the history of the appeal as a trans-Atlantic phenomenon and David
Barry Gaspar's convincing study of the "innovative borrowing" that
contributed to the construction of Jamaica's law of slavery. Subsequent
sections address these trans-Atlantic connections less explicitly, but the
intent is present throughout.
The effort to place early American legal history in the
context of a wider colonial Atlantic history is itself significant. But
the orientation also promises novel insights, both about early America and
As John Comaroff has pointed out, the broader field of
colonial legal history has moved beyond both a critique of law as a
modality of control and the observation that indigenous peoples used law
strategically, to a more nuanced consideration of the ways in which
"colonial legal cultures [...] were constitutive of entire colonial
worlds." In defining "legalities" in the introduction as "virtually any
repetitive practice of wide acceptance within a specific locale," Tomlins
signals an affinity with this more expansive, and analytically ambitious,
approach (p. 3). He argues that this opening of legal to cultural analysis
(re)places law at the center of narratives about colonial American
One of the ways that the volume's articles approach this
goal is in showing the contributions of legally marginal social actors to
the development of law in early America. Two articles question the
standard narrative of Indian-white legal relations that portrays English
legal influences as both progressively invasive and decisively dominant
after King Philip's War. A more complex plurality--though not a melding of
"middle ground" legal practice--pervaded early Algonquin-settler
relations, Katharine Hermes argues, and it persisted, Ann Marie Plane
shows, even beyond King Philip's War. Several other articles in the book's
middle sections analyze the legal treatment and role of "legal outsiders,"
as John G. Kolp and Terri L. Snyder characterize women in one of several
articles in the volume on gender and the law (p. 292, and see pp.
272-292). The category of legal outsiders would include servants (whose
actions in Maryland courts are investigated by Christine Daniels),
Christianized Indians (described as a semi-marginal legal group in
colonial New Mexico by James F. Brooks), and children (analyzed as a
special category of witness by Holly Brewer). The authors argue in
different ways that these groups, both through their own actions and
through their representation as legal actors, played important roles in
shaping institutions and legal culture.
The parallel theme of trans-Atlantic connections returns in
the final section. Several articles characterize the early American legal
order as a variant of a more broadly typical early modern legal regime. In
this section as elsewhere in the book, such claims are conservatively
grounded in a close analysis of particular cases. Thus Cornelia Hughes
Dayton argues that that the "profoundly religious mindsets" of colonial
lawyers suggest "important parallels and links between Reformation Europe
and New World legal frontiers," while she also analyzes New Haven colony
as a peculiar variant of this regime (p. 338, and see pp. 337-356).
Indeed, one of the strengths of this book is its assemblage
of high-quality research; none of the pieces is casually constructed, and
none advances its claims without considerable evidence. It is worth
noting, too, that the crosscutting themes of the book make it possible to
assemble the pieces differently (and to mine the volume effectively for
use in teaching). In addition to the unifying themes of exploring the
status of "legal outsiders" and examining the legal-cultural patterns that
Katharine Hermes calls "jurispractices," articles drawn from different
sections analyze shifting representations of property in the law (for
example, Linda L. Sturtz on women's property; Richard Lyman Bushman on the
farm as legal category; and A. G. Roeber on charity law) and shifting
perceptions of the authority of law and courts (explored in different ways
by David Thomas Konig and William M. Offutt, Jr.).
The volume's care in rendering the complexities of early
American legal culture also points, oddly, to a weakness. The editors and
authors echo each other's claims about new-found complexity. "These essays
[...] eschew simplicities," we are told, and more than one author reports
having uncovered patterns "far more complex" than standard narratives
imply (pp. 215 and 252). Yet, despite the occasional lapse into more
speculative modes, the authors are cautious in advancing statements about
broader patterns of complexity. This persistent modesty raises the
question whether the new perspective can in fact reach beyond the old-new
legal history's timidity in recasting early American history or
influencing sociolegal theory.
There are also more than a few hints in the articles of
unexplored connections to colonial histories beyond the Atlantic. The
development of the law of slavery, as Gaspar shows, for example, clearly
belongs to the history of a cross-national (and not just Atlantic) legal
order. More broadly, the repetitive struggle over the legal status of
subordinate groups constitutes a familiar, iterative cultural politics of
the colonial world. A more complete critique and reformulation of American
narratives requires placing them in this wider, indeed global, context
both to sort out distinctive American patterns and to contribute to
refining understandings of colonial legal culture and conflicts. Tomlins
makes clear in the introduction that he holds out precisely this hope of
wider relevance and theoretical reorientation, but the bundling of even
high-quality articles cannot quite achieve coherence in approaching these
Such a criticism points to the depth and breadth of the
intellectual project to which the authors and editors contribute. This
volume establishes a new agenda for North American legal history for some
time to come. In broadening the scope of legal-cultural analysis and in
clearly connecting American legal history to the institutional and
cultural history of the Atlantic--and the colonial world beyond--this book
will stand as a landmark in the field.
. [Note by H-Law editors: On this subject, see also
Lauren Benton, Law and Colonial Cultures: Legal Regimes in World
History, 1400-1900 (Cambridge, Eng. and New York: Cambridge University
Press, 2002). A review of this book is forthcoming on H-Law.]
. John L. Comaroff, "Colonialism, Culture, and the Law:
A Foreword," Law and Social Inquiry 26 (2001): 305-14, at 310.
. [Note by H-LAW editors: We append the table of
contents of this important symposium.
Christopher L. Tomlins, "Introduction: The Many Legalities
of Colonization: A Manifesto of Destiny for Early American Legal History"
I. Atlantic Crossings
James Muldoon, "Discovery, Grant, Charter, Conquest, or
Purchase: John Adams on the Legal Basis for English Possession of North
Mary Sarah Bilder, "Salamanders and Sons of God: The Culture of Appeal in
Early New England"
David Barry Gaspar, "'Rigid and Inclement': Origins of the Jamaican Slave
Laws of the Seventeenth Century"
David Thomas Konig, "Legal Fictions and the Rule(s) of Law: The
Jeffersonian Critique of Common-law Adjudication"
II. Intercultural Encounters
Katherine Hermes, "'Justice Will Be Done Us': Algonquian
Demands for Reciprocity in the Courts of European Settlers"
James F. Brooks, "'Lest We Go In Search of Relief to Our Lands and Our
Nation': Customary Justice and Colonial Law in the New Mexico Borderlands,
Ann Marie Plane, "Customary Laws of Marriage: Legal Pluralism,
Colonialism, and Narragansett Indian Identity in Eighteenth-Century Rhode
III. Rules of Law: Legal Relations as Social Relations
Christine Daniels, "'Liberty to Complaine': Servant
Petitions in Maryland, 1652-1797"
Linda L. Sturtz, "'As Though I My Self Was Pr[e]sent': Virginia Women with
Power of Attorney"
John G. Kolp and Terri L. Snyder, "Women and the Political Culture of
Eighteenth-Century Virginia: Gender, Property Law, and Voting Rights"
Holly Brewer, "Age of Reason? Children, Testimony, and Consent in Early
IV. Rules of Law: Legal Regimes and their Social Effects
Cornelia Hughes Dayton, "Was There a Calvinist Type of
Patriarchy? New Haven Colony Reconsidered in the Early Modern Context"
William M. Offutt, Jr., "The Limits of Authority: Courts, Ethnicity, and
Gender in the Middle Colonies" Richard Lyman Bushman, "Farmers in Court:
Orange County, North Carolina, 1750-1776"
A. G. Roeber, "The Long Road to Vidal: Charity Law and State
Formation in Early America"
Bruce H. Mann, "Afterword: The Death and Transfiguration of Early American
Notes on the Contributors]
Library of Congress
Call Number: KF361.A2 M36 2001
* Law--United States--History--18th
* Law--United States--History--17th century--Congresses.
Citation: Lauren Benton . "Review of Christopher L. Tomlins
and Bruce H. Mann, eds, The Many Legalities of Early America," H-Law,
H-Net Reviews, June, 2002. URL:
“Legal history was once
about law and just the law…The Many Legalities of Early America
represents the displacement of the new legal history with cultural legal
history, as historians cease reifying law and place it firmly within the
networks of its host society and historical development.”
Michael A. Bellesiles,
review of The Many Legalities of Early America, by Christopher L.
Tomlins and Bruce H. Mann, eds., Law and History Review 21 (Summer