Category: Collections

Source: US Global Legal Monitor

“There are two motives that have induced me to prefix a few lines by way of preface to the reader of the ensuing book. One is, that it is generally expected, and a book seems to come naked into the world without a preface; tho’ sometimes little or nothing to the purpose: but since custom has prevailed, since (I say) custom will have it so, that a man had as good go to court without a cravat, as to show himself in print without a preface, I shall conform my self herein, and thereby prevent the charge of innovation.” From the preface of Conductor Generalis (Philadelphia, 1722).

Several posts on this blog have discussed the state of legal publishing in early America. A post about Simon Greenleaf described the rise of court reporting and citation indexes in the early 19th century. Posts about Joseph Story, James Kent, and Francis Hilliard touched on the emergence of early American legal treatise publishing, which took place during that same period. The growth of legal literature in the 19th century was a dramatic change in the American publishing scene. By contrast, in the first 25 years of American independence, and certainly for the colonial era that preceded it, American printers published relatively few book-length publications. (Surrency, p. 24-26.) In this post, I would like to highlight one title that was an exception to this observation in that printers published it many times throughout the 18th and into the 19th centuries. That book is the Conductor Generalis.

“Conductor generalis” is a Latin phrase meaning “a general guide.” The book so named was a layman’s guide to the operations of courts of law and to the roles and obligations of minor officers of the court. These included justices of the peace (which role in the 18th century was a type of regional judge), coroners, constables, jury-men, overseers of the poor, surveyors of highways, jailers, and clerks of the assize. The first edition was published in New York in 1711 by William and Andrew Bradford.

Although it was an American publication, it drew on existing sources of English law, reproducing them usually in digested form. Specifically, it frequently cites William Lambarde, Michael Dalton, Richard Crompton and Sir Edward Coke, and resembles, in that regard, a work first published in London in 1642 under the title A manuall, or, Analecta: being a compendious collection out of such as have treated of the office of justices of the peace, but principally out of Mr. Lambert, Mr. Crompton, and Mr. Dalton, and which was called in later editions, The Compleat Justice. As a result of these sources, the machinery of justice that it presents reflects roles and institutions that existed in England over the previous two centuries and which had evolved there over a much longer period of time. These naturally did not immediately fit into the American context. American courts and criminal procedure in 1711 were still generally much less formal and much more improvisational than courts in the metropole. This was in part due to the relative lack of resources and specialization in the colonies. The editors of the book note in the preface the lack of legal sophistication in America:

“And if so, both the compilers’ and reader’s ends will be answered; we in collecting and writing, and he in reading so useful a work, in these parts of the world, where we are not furnished with large treatises, nor have we time from our plantation work to peruse or study them.” (C.G. 1711, [ii]).

But if lack of resources was a factor in the colonies’ variation from English customs, it also stemmed from the political diversity that existed in the earliest colonies. The local colonial governments had adopted a variety of forms of government, often quite different one from another. The structure of their courts and the machinery of justice in the colonies reflected that basic diversity. (See, e.g., McManus, pp. 73-89.) The colonies also incorporated English criminal law slowly and unevenly. Meantime, the actual patterns of criminality and criminal prosecution differed from colony to colony and over time. Some colonies, such as those in New England, were able to impose a relatively stable and effective (in terms of conviction rates) criminal justice system. In some colonies, such as New York, successful prosecution of crime was badly compromised, a situation created by corruption, carelessness of personnel and a population not above intimidating officers of the law. (Greenberg (1976), pp. 180-187.)

On the other hand, despite variation, as the colonies established county governments, and placed officers there in imitation of English counties, the relevance of a work like Conductor Generalis grew. (Boyer, p. 322.) The early 18th century saw in all colonies a rise in courts and institutions that more closely mirrored structures that existed in England. (Henretta, pp. 566-571.) People needed to know how to fulfill their offices.  During most of the 18th century, there were few trained legal professionals in any of the colonies and, for much of that time, Americans tended to hold lawyers in low esteem. (See, e.g., Henretta, pp. 563-564.) Minor officers of the court, such as justices of the peace and constables, were appointed from among the general public; they were often not compensated; and they were sometimes elected against their will. In more chaotic jurisdictions, justices of the peace often failed to organize grand juries or to show up for the trials they themselves had ordered. Constables allowed the accused to flee, and jailers were helpless to keep detainees imprisoned. Colonial legislatures often felt obliged to enact statutes that fined or punished officers of the court who failed to uphold their duties. (Greenberg (1976), pp. 156-171.)

As early as the 17th century, Virginia and Maryland legislatures ordered the purchase of a popular English title, Michael Dalton’s The Country Justice, to tend to this need, a work that Americans used throughout the colonial period. Demand for a convenient guidebook for lay practitioners of the law was significant enough that printers took the risk of reprinting Conductor Generalis many times over the 18th century. Morris Cohen identifies 12 editions with an additional unconfirmed four editions that may not exist. All the editions have in common a lengthy chapter on the offices of the justice of the peace, the coroner, and the constable, as well as entries on other offices. It includes throughout useful forms, warrants, holdings from case law, excerpts from treatises, and opinions of authorities. But subsequent publishers supplied additional contents and drew from other sources of law to produce updated versions of the book.

The second edition was published by Andrew Bradford in Philadelphia in 1722. That edition was given a new preface (with jokes), as well as a segment on the office of the clerks of the assize (a position that managed administrative control of the assize court). It also adopted an alphabetical arrangement of the subjects discussed, which was followed in part by all later editions of the book. The preface cites a handful of English sources from which the entries were drawn, including William Nelson’ The office and authoritiy of a justice of peace and the anonymous work, The compleat sheriff (office and duty of sheriffs), as well as a chapter on the law of descents which is taken from Matthew Hale’s History of the Common Law of England.

A new edition appeared in 1749 under two different imprints, Franklin and Hall in Philadelphia and J. Parker in New York. It was augmented with an abstract of Magna Carta, and the Habeas Corpus Act of 1679 – contents that reflected the popularity of another pamphlet, English liberties, or The free-born subject’s inheritance; that title was published many times in England after its first appearance in 1682 and was printed in American for the first time in 1721. Additionally, the 1749 Conductor Generalis imported entries from Giles Jacob’s New Law Dictionary (on actions and remedies, and mayors and corporations among others), which was first published in 1729 and became immensely popular in America.

The 1764 edition represented a new departure entirely. It was compiled by a New Jersey justice of the peace named James Parker, who drew heavily on a book that had been published recently, Richard Burn’s The justice of the peace, and parish officer (London, 1755). He also replaced the selection from Matthew Hale on the law of descent that appeared in earlier editions with a more recent piece of writing composed by the new (and first) Vinerian Professor of English Law at Oxford, William Blackstone, A treatise on the law of descents in fee simple. This was, according to Eller, via Cohen, the first printing of anything by Blackstone in America. (Cohen, v. 2, p. 9.)

The first editions to be produced after independence were printed in 1788. Anticipating patriotic antagonism toward the book’s recapitulation of the pre-revolutionary legal order, the New York edition by Hugh Gaine begins its preface with an apology for the work’s frequent citation of English statutes and authorities. “The laws of England are so interwoved into the codes of most, if not all the United States, that it was impossible to avoid citing authorities, which, tho’ at the first view they seem appropriated to that country; yet, upon a nearer examination, by an easy analogy, will be found equally applicable to these states.” And “The citing of acts of parliament in their original form has likewise an appearance of impropriety…“ (C.G. Gaines, [iii].) That antagonism was in some way ironic. While American officers of the court, constables, juries, and other functionaries continued to deliver unpredictable and inconsistent results throughout the century – including both discriminatory and persecutory treatment of Native Americans and people of African descent (see, e.g. Mcmanus, pp. 127-130) – the institutions throughout the colonies nevertheless drew closer over time – in certain respects – to the practices of the home country. (Meranze, pp. 196-204.) This was in part due to the spread of the sort of information that was available in the Conductor Generalis.

Secondary Sources:

Boyer, Larry M. “The Justice of the Peace in England and America from 1506 to 1776: a bibliographic history.” The Quarterly Journal of the Library of Congress, Vol. 34, No. 4 (October 1977), pp. 315-326.

Cohen, Morris L., 1927-2010. Bibliography of early American law. Buffalo, N.Y. : W.S. Hein & Co., 1998.

Flaherty, David, H. “Crime and Social Control in Provincial Massachusetts.” The Historical Journal,  Vol. 24, No. 2 (Jun., 1981), pp. 339-360.

Goebel, Julius, Jr., 1892-1973. King’s law and local custom in seventeenth century New England. [New York, 1931].

Greenberg, Douglas. “The Effectiveness of Law Enforcement in Eighteenth-Century New York,” The American Journal of Legal History.” Vol. 19, No. 3 (Jul., 1975), pp. 173-207.

Greenberg, Douglas. Crime and law enforcement in the Colony of New York, 1691-1776. Ithaca, N.Y.: Cornell University Press, 1976.

Henretta, James A. “Magistrates, common law lawyers, legislators,” in The Cambridge History of Law in America. Vol 1. Grossberg and Tomlins eds.  Cambridge, UK; N.Y.: Cambridge University Press, 2007-2008, pp. 555-592.

Langbein, John H. Prosecuting crime in the Renaissance: England, Germany, France. Cambridge, Mass., Harvard University Press, 1974.

McManus, Edgar J. Law and liberty in early New England: criminal justice and due process, 1620-1692. Amherst: University of Massachusetts Press, c1993.

Meranze, Michael. “Penality and the colonial project: crime, punishment, and the regulation of morals in early America,” in The Cambridge History of Law in America. Vol 1. Grossberg and Tomlins eds.  Cambridge, UK; N.Y.: Cambridge University Press, 2007-2008, pp. 178-210.

Rankin, Hugh F. Criminal trial proceedings in the General Court of Colonial Virginia. Williamsburg, Va., Colonial Williamsburg; distributed by the University Press of Virginia, Charlottesville [c1965].

Rice, James D. “The Criminal Trial before and after the Lawyers: Authority, Law, and Culture in Maryland Jury Trials, 1681-1837.” The American Journal of Legal History. Vol. 40, No. 4 (Oct., 1996), pp. 455-475.

Surrency, Erwin C. A history of American law publishing. New York: Oceana Publications, 1990.

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