Legal History

Much legal history is written by lawyers. Lawyers are not historians and are taught how to win cases, not how to seek the truth. Truth, they trust, will develop out of the adversarial presentation of cases. We have found that lawyers and judges are sometimes either hopelessly naive or historiographically unsophisticated; in either event their acceptance of historical data of varying levels of evidential credibility is more or less indiscriminate. Perhaps they select only data that will strengthen their cases. As one recent observer has written, "Constitutional historians pursue the prey of constitutional meanings for the love and artistry of the chase, and because the trophies bagged are prestigious decorations along library walls. Judges seek the guidance or protective coloration of historical data to justify their handling of controversies thrown at them by the real world. Thus the function of history as the historian writes it and that of history written by courts are irreconcilable." (C. Herman Pritchett's "Introduction" to Stephen M. Miller A Selected Bibliography of American Constitutional History. Santa Barbara:  Clio Books, 1975, p. 1.) Many of the articles included in this section have been published in law journals and should be scrutinized carefully for bias due to an advocacy position. Nevertheless, in works written by lawyers and judges, I have found much that is useful in my teaching, writing, and consulting.

The major primary source of legal history is the ongoing series of Connecticut Reports begun in 1784 by Ephraim Kirby. They are available in the libraries of Connecticut's three law schools and in the county court houses. Kirby's Reports which were published in 1789, are generally considered to be the first in the nation. But Edwin C. Surrency points out that the claim is challenged by Francis Hopkinson's Judgements in Admiralty, published the same year. Surrency's article "Law Reports in the United States," an excellent discussion of the subject is in The Journal of Legal History 25(January, 1981)1:48-66. But see the article by Alan Briceland under Kirby in the "Biographies" section below.

The Reports print the opinions of the Connecticut Supreme Court of Errors and additional miscellaneous materials, such as codes of ethics, lists of clerks, and rules of practice. The miscellaneous material was indexed through volume ll9 by Helen Coffin and Frances Davenport in "Index to Materials Printed in Connecticut Reports, Other than Reports of Decisions and Biographic Memorials," Connecticut Bar Journal 10(April 1936)2:139-44. The decisions of the Courts have been digested from time to time in handy one- and two-volume works. Simeon E. Baldwin prepared one, A Digest of All the Reported Cases Decided in the Supreme Court of Errors and the Superior court of the State of Connecticut, and in the United States Courts for the District of Connecticut .... (Boston: Little Brown, 1871; Vol II, 1882) A three-volume work by Richard H. Phillips, Connecticut Digest of Judicial Decisions 1785-1945 (Hartford: the State, 1945), brings the Connecticut cases down to that date. Phillips describes his project in "A Comprehensive Digest and the Connecticut Reports," Connecticut Bar Journal 17(April 1943)2:112-19; and in "The New Connecticut Digest" Connecticut Bar Journal 19(July, 1945)3:126-28. In the former piece, Phillips issues some caveats about relying on the Digests for complete accuracy. See also Henry J. Brandt, "Finding the Law in the Connecticut and Atlantic Digest" Connecticut Bar Journal 19(0ctober, 1945)4:262-74.

Zephaniah Swift's A System of Laws of the State of Connecticut (Windham: the author, 1795) is a compilation with extensive commentary. It is a tremendously valuable repository for the history of all sorts of public concerns: towns and cities women and marriage schools and societies, and the like. Everett Goodwin (cited above) writes that Swift's work was "a milestone for several reasons: it was the first comprehensive treatise on American law of any kind. It became a manual of instruction not only to Connecticut, but in much of the frontier region all the way to Ohio. And most important, it was the first step in Swift's almost single handed articulation of a new paradigm for the concept of adjudication in Connecticut." (p. 94) Swift's work can be profitably perused by the social as well as the legal historian. A discussion of it is in Elizabeth Forgeus, "An Unpublished Letter of Zephaniah Swift" New England Quarterly 11 March, 1938) 1:180-83. The letter is to David Daggett, September 10, 1796, in reference to Swift's System. The original is at Yale.

Albert Carlos Bates compiled Connecticut Statute Laws: A Bibliographical List of Editions of Connecticut Laws from the Earliest Issues to 1836 (Hartford: Case, Lockwood & Brainard, 1900), Acorn publication no. 3, useful in tracing changes in specific statutes. Bates also published "Early Connecticut Laws, 1702-1715," in Papers of the Bibliographic Society of America 40(1946):151-58.

In the nineteenth century it was thought that court trials made for exciting reading, and many of the more sensational cases were published as pamphlets. Twentieth-century journalism has made that genre of literature obsolete, however. John S. Gummere published "Some Noted Trials in Connecticut A Bibliography," in Law Library Journal 3O(September, 1937)4:529-59. This is a list of thirty-one separately published trials, dating from 1799 to 1916, in chronological order, most of them before the Civil War. Gummere says that the two most famous trials in Connecticut history are those of Prudence Crandall and the Amistad Africans, discussed in the "Slavery and Black Experience" section of this bibliography.

A frequently cited journal in this bibliography is the Connecticut Bar Journal. This publication, established on the recommendation of a committee of the Connecticut Bar Association in 1926, is the official organ of that group. It includes proceedings and resolutions of the Association but "invites a critical even a controversial spirit. The daily life of every lawyer is an exemplification of the principle that practical justice is the spark that flies from the clash of opposing minds." (CBJ, January, 1927, 1, p. 2).  It is concerned mainly with the nuts and bolts of legal practice, and features such articles on such topics as "Hernia in Compensation Law," "Standard Requirements for Certificates of Titles," and "Bastardy Procedure." Historical articles have been noted throughout this bibliography where appropriate, and there are cumulative indexes: for volumes 1 through 40, published in 1969; and for volumes 1-49, published as volume 49(December, 1975)4. Beginning in 1947, the Connecticut Bar Journal carried a section called "The Law Review," edited by students at the University of Connecticut Law School Reading between the lines reveals the frustrations of the students and the annoyance of the editors of the Journal in the 1960s and beginning in 1968 the University of Connecticut Law School published its own Connecticut Law Review. This work is concerned exclusively with the day-to-day work of the lawyer, and we found only a few articles of historical interest in it Volume 15(Fall, 1982), however, is devoted entirely to the Connecticut Constitution, though only one article deals with historical considerations. That article is cited elsewhere the Yale Law Review, begun in 1891, carries articles of Connecticut interest which are listed where appropriate, but its focus is not local An overview of the legal profession in Connecticut can be garnered from Victor M. Gordon, ed., A History of the First One Hundred Years of the Connecticut Bar Association: 1875-1975, which was published as a 375-page volume, 49(June, 1975)2, of the Journal. The daily routine of a practicing lawyer in the early days of the state is portrayed in Mabel Seymour, A Lawyer of Kent: Barzillai Slosson and His Account Books 1794-1812, Tercentenary pamphlet XLVII (1935), also published as no. 2 of the Yale Law Library Publications. There is an excellent discussion of the development of the legal profession in Connecticut to about 1800 in Everett C. Goodwin, The Magistracy Rediscovered: Connecticut 1636-1818 (Ann Arbor: UMI Press, 1980), pp. 63-76.

Other works focusing narrowly on aspects of the law and the legal profession:

Baldwin, Simeon E. "Whipping and Castration as Punishment" Yale Law Journal 8(June, 1899)9:371-86. "I do not hesitate to avow my conviction that whipping would often furnish a mode of punishment far more appropriate than fine or imprisonment for young offenders, and for some minor offenses by full-grown men." (p. 375) There were a couple of colonial cases of castration for rape--one ordered by Judges Roger Wolcott, James Wadsworth and William Pitkin, and others--and Baldwin thought the punishment should be reinstituted for that crime. At the time he delivered this paper as a speech to Connecticut law enforcement officers, there were twenty-two men in the state prison for committing rape and twelve others for attempting it. This paper is a marvelously integrated example of run-of-the-century sexism and racism. It has to be read to be believed. Baldwin was then an associate justice of the Supreme Court of Errors.

DeForrest, Robert G. "The Public Defender in Connecticut" Journal of Criminal Law 18(February, 1926)4:522-27; reprinted in the Connecticut Bar Journal 1(0ctober, 1927)4:330-35.

Fowler, William C. "Local Laws of Connecticut" New England Historical and Genealogical Register 20(January-April 1870). This fellow was a partisan politician; his writings are notably unencumbered by objectivity.

Holden, Benedict M., Jr. "Freedom of Expression in Connecticut" Connecticut Bar Journal 29(September 1955)3:240-49. Freedom of expression had no tradition in Connecticut until the Revolutionary Era Then "with the tacit consent” of the legislature, it prevailed but "its existence was dependent upon the General Assembly." (p. 248) The Constitution of 1818 gave it explicit protection.

Lipson, Dorothy Ann. "More Proof, More Doubt The Social Context of a Trial in Connecticut in 1800." Yale Law Report 19(1972)9-12. Comment on a trial for trespass on a millpond that involved a discussion of current theories of the transmission of yellow fever. The trespass took place in New Milford, and the case was tried before the Superior Court in Litchfield County. It was reported by David Daggett in the first volume of the Memoirs of the Connecticut Society of Arts and Sciences.

Pickett Waiter H. "The Office of the Prosecutor in Connecticut" Journal of the American Institute of Criminal Law and Criminology 17(November, 1926)3:348-58. This piece includes a history of the King's and the State's attorney, and discusses the absence of a common law tradition in Connecticut.

Tarisse, Edward. "Early Connecticut Law." Central Law Journal 82(1916)36.

Wenig, Mary Moers. "The Marital Property Law of Connecticut: Past, Present and Future," Wisconsin Law Review ? (1990) 839 -

Wynne, Kenneth. "Public Defenders in Connecticut" Journal of the American Institute of Criminal Law and Criminology 17(November, 1926)3:359-68. Wynne became chief justice of the state supreme court thirty-one years after he published this piece. The piece discusses the public defender law of 1917, bringing the story down to 1926.

The entire issue 17(November, 1926)3 of the Journal of the American Institute of Criminal Law and Criminology was devoted to current legal problems in Connecticut. It includes, among other subjects, surveys of the administration of criminal justice in Bridgeport, Hartford and New Haven.