In 1788 the Court of Common Pleas, after lengthy deliberations, came to a judgment in Steel v. Houghton et Uxor, concluding that “no person has, at common law, a right to glean in the harvest field.” Gleaning was of considerable importance to many laboring families in the eighteenth century; therefore, both the provincial and the London-based newspapers reported the 1788 judgment at length, as well as covering the 1786 case of Worlledge v. Manning on which it was partly based. The 1788 case not only stimulated a widespread public debate over the gleaners' rights, but also established an important legal precedent. From 1788 onward, every major legal handbook from Burn's New Law Dictionary of 1792 to the early twentieth-century editions of Wharton's Law Lexicon used it as the standard caselaw reference. It is quoted in a wide variety of law books written for farmers such as Williams's Farmers' Lawyer and Dixon's Law of the Farm, as well as inspiring long footnotes in the post-1788 editions of Blackstone's Commentaries. By 1904, it was being referred to in the law reports as “the great case of gleaning.”

In England during the twelfth, thirteenth, and fourteenth centuries, the royal courts cast a longer and longer shadow over private and local jurisdictions. By a series of steps embracing much innovation, the custom of the king's court gradually became the common law of England, and the royal courts asserted their supremacy over other jurisdictions in many areas. Foremost among these were disputes over freehold land and cases involving felonies. It has been suggested that the royal innovations’ jurisdictional effects on private courts were “neither intended nor foreseen.” Nonetheless, they reduced private jurisdictions—with the exception of the palatinates—to constitutional insignificance during the thirteenth century. Occasional baronial objections, such as that enshrined in clause thirty-four of Magna Carta or the bluff waving of a rusty sword at a quo warranto inquest do not disguise this basic fact of English legal and constitutional history.

The American victory in the Revolutionary War was followed by a spate of lawmaking, the silence that succeeded the clash of arms being promptly shattered by a legislative hubbub. One North Carolina judge in 1787 likened the colonists' legal situation after the Revolution to that of “a set of people shipwrecked and cast on a marooned island.” Like so many Robinson Crusoes, they were “without laws, without magistrates, without government, or any legal authority.” A new political order was urgently required, so constitutions were drafted and adopted in short order. Civil laws were needed as well, and rules of decision for the new state courts. By and large, English common law was maintained, a familiar system with which most people were satisfied and one, moreover, that had gained added luster from revolutionary arguments based on defense of the rights of “freeborn Englishmen.”

When Europeans first arrived, the Native American societies of North America had a variety of systems of social control and conflict mediation. These indigenous peoples were not heir to the concept of equal protection of the law derived from the Magna Carta, nor to notions of individual rights defended in the English Bill of Rights (1689) and Western Enlightenment political thought. Theirs were systems of custom and commandment of their own need and development. Therefore, after the contact period, whenever conflict arose a central issue of cultural pluralism surfaced: whose resolution system would be used when mediation was necessary.

Andrew J. Finch has taken issue in these pages with my interpretation of “clandestine” marriage in the later Middle Ages. He is certainly correct that the phenomenon of “clandestine” marriage in the high and late Middle Ages cannot be given a single explanation. As I said in the first piece that I wrote on the topic: “The cases provide evidence for the proposition that some people were genuinely confused about to whom they were married; that the Alexandrine rules were being used to defraud the innocent; and that they were being used by people to get out of marriages which had become intolerable for reasons quite unrelated to the Alexandrine rules.” And again: “while the reasons why the parties chose to marry informally rather than solemnly is in many cases obscure, there are some cases in which we may conclude that the parties chose informal marriage in order to escape pressure from their families or lords. Howard… and Homans… both suggest that the reason for informal marriage is that the Church was unable to enforce her rules on the ingrained marriage customs of the people. Turlan…, on the other hand, sees as I do informal marriage as a way of escaping both family and ecclesiastical pressure. The two views are not necessarily inconsistent. Varying motivations may have played a part in different places and times and among different individuals.”

One sunny summer Sunday, on August 17, 1873, an Irish-born day laborer named Fitzsimmons, “of very limited circumstances,” living in a shack in Ft. Leavenworth, Kansas, sent his twelve-year-old son, Jerry, to fetch the family's cow. The animal had been left on an “open common” grazing area near the local sheds and yards of the Kansas Central Railroad. Fitzsimmons had warned his son to stay away from the railroad company's trains, but he had never mentioned, and may never have known of, a curious device that stood near the commons. For the past three years, a large iron turntable had served to reverse the direction of the company's locomotives (see figure 1). The Fitzsimmons family cow had wandered to a spot close to this turntable, and Jerry Fitzsimmons climbed onto this device as two or three other, older children began to turn it around. The Fitzsimmons boy sat on the end of the table with his legs hanging over its rails. Before he realized what was happening, the rails of the turntable came into alignment with those of the adjacent track, and his left leg was caught between the two rails and badly mangled, requiring its amputation. His father sued the company for negligence, and a jury awarded him three thousand dollars and court costs; the company appealed the decision, and the Kansas Supreme Court ordered a new trial, but in 1879 it upheld that second jury's award and finding of the company's liability. The high court cited decisions of the United States Supreme Court and of the Minnesota Supreme Court in its opinion.

Sometime in the winter of 1839, Keziah Kendall, a thirty-two-year-old woman living with her two sisters on a dairy farm “not many miles from Cambridge,” heard from her “milkman” that a public lecture would be delivered on the legal rights of women. Kendall “thought [she] would go and learn,” but when she attended she found that she “did not like that lecture much.” The speaker was Simon Greenleaf, Royall Professor of Law at Harvard University, who at the time was delivering lyceum lectures in eastern Massachusetts on the subject of women's rights. Not the least bit intimidated by Greenleaf's stature, Kendall wrote him a candid letter, expressing her disapproval of his talk: “[T]here was nothing in it but what every body knows. … What I wanted to know, was good reasons” for the rules governing the legal rights of women “that I cant account for. I do hope if you are ever to lecture at the Lyceum again, that you will give us some.” Kendall then proceeded to tell Professor Greenleaf the remarkable and poignant story of how her personal experiences had shaped her interest in her own legal rights.

During the late nineteenth century, as the “trust problem” occupied the attention of politicians and entrepreneurs across the nation, California farmers began an experiment that would irretrievably alter the form and function of agricultural marketing cooperatives. Taking a cue from the robber barons, leaders in the state's promising raisin industry set out to apply the advantages of corporation law—and of the modern trust—to the principles of cooperation. As early as 1899, the raisin industry's merger of corporation and cooperative caught the attention of the San Francisco Chronicle's agricultural editor, Edward F. Adams. “The principle of cooperation in [agriculture] for marketing purposes,” he wrote, “is identical with that of the cooperation of capitalists in what are called ‘Trusts.’”

The history of American criminal justice is, to say the least, by no means an overplowed field. In fact, it has gotten systematic attention only in recent years. The public, of course, is fascinated with crime and horrified by crime; stories about crime and criminal justice cry out from the pages of newspapers and dominate movies and television. Historical research is another matter.

The first half of the twentieth century should be a rich field for research. Records are available in abundance and in every county. Moreover, there are, particularly for the 1920s and 1930s, a fair number of state crime surveys and other empirical studies of criminal justice. California and the West, however, have been somewhat neglected. This article presents some data on one county, Santa Clara County, in one year, 1922, as a modest beginning.