William Nelson's fine study of the common law in New England and the Chesapeake region, the first installment in a projected three-volume history of the common law in early America, launches an ambitious project. Nelson seems to hope to transform the field of Early American Legal History in several ways. First, he wants to replace the framework of reception with one of intercolonial comparison. Second, he wants scholars to stop relying so heavily on legislation and to pay more attention to what courts did. Finally, he thinks legal historians too often approach the law as relatively isolated from the rest of society. He wants to imbed legal history firmly in its historical context, as we cannot understand the law without attending to the social, economic, political, and cultural forces that shaped it. A main theme of his project is that “those who possessed political and economic control of a colony routinely used their power to steer that colony's law in directions that would further their ends and goals” (101). After detailed studies of the law in the Chesapeake region and New England, Nelson concludes that as early as 1660, “two regional bodies of law had begun to emerge in the continental English colonies—one in the North and one in the South. The North's law was already more egalitarian; the South's more hierarchical. The South treated its underclasses brutally, with the economic interests of the master class as the sole restraint on that brutality. The men of the North may not always have treated their women, children, or servants kindly, but the law required them to display greater moderation. The southern economy depended on the export of a cash crop, and the South's law reflected that economic reality. New England law promoted family farms, and those farms dominated the region, except in the port towns … where the law was already facilitating the growth of mercantile capitalism” (129). This project promises to be important. The first volume is based on impressive archival research (Nelson seems to have examined all the available court records in two Chesapeake and five New England colonies.) and on a mastery of the literature of early American history. My only complaint is that the volume lacks a bibliography. While the notes are full and detailed, it is inconvenient to hunt through them in search of a reference. I also worry that Nelson's characterization of Virginia as dominated by profit seekers and Massachusetts by those seeking salvation, is not as nuanced as recent scholarship suggests and might put off some colonialists. Further, it is troubling that in the larger project, Nelson apparently does not intend to devote much attention to the Caribbean. This is unfortunate as recent research suggests that developments in the sugar islands, particularly on Barbados, had a major impact on the law in the continental colonies, especially in the areas of labor law and debtor-creditor relations. These are mere quibbles, however. This is a fine project, impressively researched and persuasively argued, one that deserves the attention of all students of early America. I eagerly await the appearance of subsequent volumes in this project.
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