To LEILA
1981 The University of North Carolina Press
All rights reserved
Manufactured in the United States of America
Library of Congress Cataloging in Publication Data
Nelson, William Edward, 1940-
Dispute and conflict resolution in Plymouth County, Massachusetts, 1725-1825.
(Studies in legal history)
Bibliography: p.
Includes index.
1. Justice, Administration ofMassachusetts Plymouth Co.History. 2. CourtsMassachusetts Plymouth Co.History. 3. Plymouth Co., Mass. History. I. Title. II. Series.
KFM2999.P6N44 347'744'82 80-17403
ISBN 0-8078-1454-7
Acknowledgments
In two significant respects, this book grows out of my earlier research in the legal history of Massachusetts, which was published under the title. Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760-1830.
First, the results of that earlier research have framed the issues which this study addresses. Americanization attempted to construct a coherent portrait of late eighteenth- and early nineteenth-century legal doctrine on the basis of that part of the law which could be analyzed in greatest detail: the rules of civil procedure. The book's central finding, on which the remainder of its analysis rested, was that eighteenth-century juries possessed power to determine law as well as fact. That finding, in turn, raised questions about the cohesiveness of eighteenth-century New England communities which this study will explore.
Second, my earlier research acquainted me with Lawrence D. Geller and Peter J. Gomes, who were at the time the director and librarian, respectively, of Pilgrim Hall in Plymouth. In many conversations, they argued that Plymouth County, which I had unreflectively viewed as a social and economic backwater, exhibited an eighteenth- and early nineteenth-century pattern of development that may not have differed markedly from the pattern of most of New England. I am indebted to them for convincing me that, whatever the precise weight of their arguments might be, Plymouth County merits serious scholarly study.
I am, of course, also indebted to many others. Research was financed by a grant from the National Science Foundation, grant number SOC 76-14338 Aoi, which was supplemented with research funds provided by the Yale Law School. Any opinions and conclusions expressed in the book, however, are those of the author and do not necessarily reflect the views of the foundation. Research funds were administered by Emily Golia.
Several people provided secretarial assistance. Carole Bonner typed the final draft of the manuscript. Muneera Spence drew the map of Plymouth County. Jean Doherty and Barbara Perry coordinated the work of many others who performed lesser secretarial chores. I am indebted to the Dyer Memorial Library, the Hilles Library of the Andover Newton Theological Seminary, the Massachusetts Historical Society, and the Rhode Island Historical Society for permission to publish excerpts from their collections. Douglas Jones kindly gave permission to read and cite his Ph.D. dissertation. Evelyn C. Coughlin, Barbara Delorey, Manfred Kohl, Robert Pardon, Oren A. Peterson, David Ripple, Marshall W. Ross, Hilda Stenbeck, Leonard H. Smith, and Leah Warburton graciously facilitated research in local church records. Michael Glazier generously permitted me to retain the copyright on an earlier version of this book so that it could be published here.
John W. Reifenberg gathered, analyzed, and checked statistical data from the court records. Bruce A. Ackerman, Robert A. Burt, Robert M. Cover, Robert A. Gross, Adam J. Hirsch, Leon S. Lipson, Jerry L. Mashaw, and Edmund S. Morgan read and criticized various drafts of the book. David Thomas Konig, who read several drafts and discussed them with me on innumerable occasions, provided invaluable ideas and bibliographical guidance as well as useful criticism.
The communities of eighteenth-century Plymouth County have special meaning to me as societies where people never forgot the basic facts of human existence: on the one hand, their mortal nature and their limited capacity to apprehend mankind's place in the scheme of things; and, on the other, their power to generate new life and new ideas. The late Myra R. Brunswick, who during the course of her terminal illness typed all but the final draft of this book, brought home through her courage and fortitude some of the sad, though significant, lessons that can be learned from eighteenth-century Plymouth. At the same time, my family always provided joy. Leila's exuberance made daily living fun throughout my work on this book, just as Gregory does today. My wife, Elaine, never forgot life's difficult but most rewarding tasks.
The people of eighteenth-century Plymouth lived with basics ultimately as tillers of the soil. Thus, they knew that, if a field is to produce crops, it is more important to plow and sow it seasonably than to do so perfectly but too late. Like the farmers of Plymouth, I am quite aware that I have not plowed my field as exhaustively or as perfectly as it might be plowed. But I have plowed it seasonably and, I hope, well enough so that it will lead to new and fruitful ideas.
W. E. N.
Guilford, Conn.
January 1980
I Introduction: The Larger Context of Conflict and Dispute
For more than a decade, historians have engaged in an often acrimonious debate about the character of eighteenth-century New England communities. On the one hand, these communities have been described as peaceable kingdoms governed by a widely shared consensus of ethical values. This debate is a significant one that poses grave implications for a number of issues in early American history.
But the debate has focused on the wrong question in asking how disputatious New Englanders were. There is no doubt whatever that conflict existed and that disputes arose in eighteenth-century Massachusetts. But this does not mean that people who lived in the eighteenth century were unusually disputatious. In order to determine that they wereor, indeed, that they were notit would be essential to know not only the frequency at which disputes arose in the eighteenth century, but also the frequency at which they arose in other cultures at other times. Then, it might be possible to know whether eighteenth-century New England manifested a typical rate of conflict, an unusually high rate, or a low rate. In the absence of data from other cultures and of criteria for comparison of such data, however, all that can be known is that disputes did arise in provincial Massachusetts.
Because it is not possible to determine how disputatious eighteenth-century New England was, this study will focus upon the techniques by which disputes were resolved rather than upon the frequency at which they arose. Two typologies of dispute resolution will emerge for the communities under study. It will appear that some communities were able to resolve most disputes between their residents without recourse to outside institutions, such as courts. In other communities, however, disputants frequently did turn to the courts. These two types of communities will be examined and compared in detail in an effort to isolate the factors that either facilitated or impeded communitarian dispute resolution.
