Remaking Custom: Law and Identity in the Early American Republic

269 Pages·2011·1.529 MB·English

by  Ellen Holmes Pearson

Remaking Custom
Jeffersonian America
Jan Ellen Lewis, Peter S. Onuf, and Andrew O’Shaughnessy, Editors
Remaking
Custom
Law and Identity in the
Early American Republic
Ellen Holmes Pearson
University of Virginia Press | Charlottesville and London
University of Virginia Press
© 2011 by the Rector and Visitors of the University of Virginia
All rights reserved
Printed in the United States of America on acid-free paper
First published 2011
9 8 7 6 5 4 3 2 1
Library of Congress Cataloging-in-Publication Data
Pearson, Ellen Holmes, 1962–
Remaking custom : law and identity in the early American Republic / Ellen Holmes
Pearson.
p. cm. — (Jeffersonian America)
Includes bibliographical references and index.
isbn 978-0-8139-3078-7 (cloth : acid-free paper) — isbn 978-0-8139-3093-0 (e-book)
1. Law—United States—History—18th century. 2. Law—United States—History—
19th century. I. Title.
kf366.p43 2011
349.73—dc22 2010025069
For Michael
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Contents
Acknowledgments ix
Introduction 1
1. America’s Common Law: Custom, Choice, and History Lessons 11
2. American Constitutions and American Character 31
3. Property Acquisition and Inheritance 74
4. The Question of Slavery in the New Republic 113
5. Public Lands, Expansion, and the Native Americans 141
6. Custom, the Written Law, and American Legal Treatises 172
Conclusion 195
Notes 201
Bibliography 227
Index 245
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Acknowledgments
A dear friend of mine recently told me that writing acknowledgments was
like a “gracious victory lap.” Many friends, colleagues, and family members
deserve to join me on that victory lap, because they gave me so much sup-
port while this project evolved from idea to dissertation to book. I was Jack P.
Greene’s sixty-ninth doctoral student—we Jackobites keep count—but we
were never just a number with Jack. He is a remarkably skilled and patient
mentor, and I will always be grateful for his wise advice. His unique ability
to cultivate an intellectual community among his students sets an example
for all of us. Many years ago, Warren M. Billings of the University of New
Orleans recognized some trace of scholarly potential in me, and I thank him
for his continued guidance and friendship.
Over the years, many scholars have taught me the meaning of collegial-
ity and professionalism. At a crucial time in my graduate career, Mark F.
Fernandez peeled me off the ceiling, made me laugh, and has continued to
serve as my “intellectual big brother.” At the Johns Hopkins University, the
members of Jack’s Colonial British America Research Seminar offered many
useful suggestions. Michael Johnson’s lively seminars always gave me food
for thought, and he provided valuable criticism at the dissertation stage as
well. Good friends and colleagues Brad Wood, Jeff McClurkin, Matthew Pa-
oni, Michelle LeMaster, Catherine Cardno, Craig Yirush, Emma Hart, and
Kelly Schrum helped me to endure the rigors of research and writing. Other
Hopkins scholars who shared their expertise with me include John Marshall,
Richard Kagan, and J. G. A. Pocock. Akhil Reed Amar, Jack Rakove, and the
participants in the Supreme Court Historical Society’s 2000 Summer Work-
shop made helpful suggestions. Donald Lutz, Peter Onuf, Ralph Lerner, and