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5.0 out of 5 stars
Attractive Reissue of a Classic in American Legal History, March 13, 2009
Since its original publication in 1975, this study by William E. Nelson has become recognized as a classic and a model of research in American legal history. This 1994 reissue by the University of Georgia Press makes the study more easily available. With the exception of an additional new preface, the book is a duplicate of the original version, which means all the page numbers are identical, an important consideration given how often this book is cited in journals and other books. Georgia has put out a first-quallity paperback reprint, with fine paper and durable binding.
Nelson's goal is to study how American common law changed between 1760 and 1830, in the wake of the Revolution. His initial chapter ["Law in a Changing Social Order"] summarizes the design of the study and his findings--this is helpful in gaining an orientation to the analysis that follows. Nelson divides his discussion into two main sections, the first dealing with the pre-revolutionary legal system. Here he talks about the judicial system, the roles of precedent, juries, and custom in defining legal obligation, and the limited authority of judges. Nelson argues that the emphasis during this period was on unity and stability, and this helped shape the legal system. There was, as a result, not too much extensive evolution in the common law; for example, not much development of the ideas of tort and contract as we know them today. In short, this was not a dynamic, capitalistic society and the legal system reflected this.
The second section of the book deals with the postrevolutonary legal system during 1780-1830. Nelson argues that with the growth of the Massachusetts economy and enterpreneurial demands, significant changes occurred in the legal system. For example, common law pleading was phased out as the rules of legal procedure were simplified. Tort and especially contract began to emerge as significant new concepts as economic development broadened. The legislature began to initiate legislation to update some commmon law concepts. The courts expanded protection for liberty relative to relaxation of defamation as a device to stifle criticism of public officals. Criminal procedure became fairer. At the same time, creditor/debtor law shifted from favoring the debtor to supporting creditors and bankruptcy was introduced. While property rights expanded, so did the idea of using property in accordance with the public interest. Importantly, the extensive power juries had enjoyed to make findings of law was eased out, opening the way for jury instructions and the development of devices to circumvent unfavorable jury verdicts. In short, the economic system became increasingly dynamic and this served as an engine for legal reform.
As usual, Nelson's research is massive and impeccable. The 176 pages of text are supported by 81 pages of notes. At times, the narrative can become dense as much information is introduced; but the resulting thoroughness mitigates this factor. Nelson has also included a bibliography of his manuscript sources; his extensive knowledge is this area has only grown as reflected in his most recent volume, "The Common Law of Colonial America" (also reviewed on Amazon.) The preface to this edition is interesting as Nelson looks back from 1994 to the reactions and findings of his 1975 study. It is wonderful that this great book is now made available again.
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