From Our Stacks: Historical US State Law

This summer we have begun re-organizing and shifting parts of the rare books collection, including our collection of historical US state and territorial law. In undertaking the project, we are without the advice and help of our friend and colleague, Ed Gale, who passed away recently. His insights and presence are sorely missed. 

The state law collection is one of the Riesenfeld Center's areas of strength and takes up several rows in our stacks. A large part of the material comprises session laws and law reports, and we have journals of state constitutional conventions, digests, local ordinances, justice of the peace manuals, chancery reports, draft penal codes and a variety of other, often very interesting, material. 

One example, a copy of Documents of the Convention of the State of New York, 1867-68 (Albany, 1868), is witness to important local and national history. The records reveal the deep opposition faced by attempts to expand voting rights for African-Americans, in the wake of the Civil War and in the heart of the "free" northern states. Though slavery was abolished in New York in 1827, African-Americans without property or with criminal convictions were disqualified from voting; the property stipulation was unique at the time to New York. During the '67-'68 convention, the report of the committee on the right of suffrage noted that equal voting rights amendments were defeated 223,884 to 85,306 in 1846, and 337,984 to 197,503 in 1850. The committee advised that the matter be sent again to a state-wide referendum, and it was not until 1874, four years after the Fifteenth Amendment, that the property requirement was abolished by state amendment. For more, see Jim Crow in New York, by Erika Wood and Liz Budnitz.

Another example, from territorial New Orleans, reflects an interesting debate over early US libel laws. In a case reported by Francois-Xavier Martin in the Superior Court of New Orleans Territory in 1810, a judge dismissed an appeal against a libel conviction, where the appellant argued for the liberty of the press and invoked the truth of the libel as a defense. The court cited English common law - which had been adopted in the territory only several years earlier - that the truth of a libel was not admissible evidence. The court then cited Spanish and French law, which previously had jurisdiction in the territory, and invoked other US state laws, in rejecting the appeal. The court even acknowledged New York's People v. Croswell (though not the Zenger trial), from which arose the first statute allowing truth as a defense against libel. In the end, the New Orleans court found other state evidence (and the lack of contradicted English tradition) more persuasive in the early republic.

   - Ryan Greenwood, Curator of Rare Books and Special Collections

 

   

The Reister Collection: Description and Highlights

Hale, The Law of Hereditary Descents
(London, 1700)

The Law Library and Riesenfeld Center's recent acquisition of the Reister collection on wills, trusts and estates in Anglo-American law contains a rich range of titles, useful for students of the history of inheritance laws, testamentary practice and estate management. The titles may also be of interest to historians of family law, women's history, and those studying the divergence of American legal doctrines from their English sources.

In England, feudal customs on the division of property, including practices like primogeniture, arose and were reinforced in the medieval period. The first great treatise of English law, Glanvill's 12th-century work on the laws and customs of England, discusses inheritance and importantly records the priority of heirs, from closest kin to most remote.  

The earliest work in the Reister collection, a first edition of Henry Swinburne's A Briefe Treatise of Testaments and Last Willes (London, 1590), treats testaments in church law and is informed by the civil law in which Swinburne was trained. The popular and useful treatise was reprinted into the early 19th century. Works by important English jurists, including Matthew Hale's Law of Hereditary Descents (London, 1700), Francis Bacon's Reading upon the Statute of Uses (London, 1642), and William Blackstone's Treatise on the Law of Descents in Fee Simple (London, 1759), are also represented in the collection.

American material, like Robert McClellan's The Executor's Guide (Albany, 1862), for New York, and Noah Cheever's Law and Practice of Probate Courts (Detroit, 1884), for Michigan, treats local probate laws. Influential 19th-century treatises, by authorities like Jarman, are similarly included, with subjects ranging from excluded persons, to repugnancy, to fraud and undue influence, as invalidating the provisions of wills. One interesting case of inheritance fraud is on our Tumblr site. Amidst the trove are also contemporary works on humorous last wills.

Menchin, The Last Caprice (New York, 1963)

A particularly unique treasure in the collection is an 18th-century manuscript, a copy of part of a work on wills and testaments, in the hand of lawyer Richard Sheridan. Interestingly, his notes were passed to another student or lawyer, John Smyly, before the end of the century. 

For more on historical laws of inheritance, see the Library of Congress website.  

   - Ryan Greenwood, Curator of Rare Books and Special Collections