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Epilogue: More Like a River than a Rock 5 page

Much of the early debate about the breadth of the national government's legal authority centered on the question of whether there was a federal common law of crimes. Dwight F. Henderson , Congress, Courts, and Criminals: The Development of Federal Criminal Law, 1801-1829 ( 1985) not only assesses this issue but shows as well the limited instruments of early federal law enforcement. Stephen B. Presser, "A Tale of Two Judges: Richard Peters, Samuel Chase, and the Broken Promise of Federalist Jurisprudence," Northwestern University Law Review 73) ( 1978), is also a good source on these matters, as is George Dargo, Law in the New Republic: Private Law and the Public Estate ( 1983).

The development of the bar and of the culture of the nation's first lawyers is explored in several works. Particularly valuable is Maxwell Bloomfield, American Lawyers in a Changing Society, 1776-1876 ( 1976). Also useful are the collections of edited legal papers of such notable figures as Daniel Webster, Alexander Hamilton, Andrew Jackson, and John Marshall. See, for example, The Law Practice of Alexander Hamilton: Documents and Commentary, 5 volumes ( 1964- 1980). R. Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic ( 1985), masterfully reveals the value of biography for legal history.

 

The Nineteenth Century

By far the richest writing in the history of American legal culture has dealt with the nineteenth century, stressing the interaction of law, politics, economics, and social change. Recently, much of the best work has concentrated on particular aspects of the law of personal status and domestic relations (especially slavery, the family, women, and children), although much remains to be done. Historians tend to view the Civil War as a major breaking point, and this approach makes some sense given the enormous implications of the war for public law. Yet considerable thematic and interpretive unity bind the eras before and after the Civil War. Harold M. Hyman and William M. Wiecek, Equal Justice under Law: Constitutional Development 1835-1875 ( 1982), provides, despite its subtitle, the best introduction to both public and private law developments during most of the century.

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Law and the Economy

Historians have devoted considerable attention to the distributive economic consequences of American law. The general issues of law and economic development are ably presented in Zainaldin, Law in Antebellum Society ( 1983), which draws heavily on the work of Hurst, whose books and essays provide the starting point for any assessment. Hurst made the important point that legislators as well as judges played vital roles in structuring market relations and allocating scarce resources. Not all scholars, however, have embraced Hurst's description of the broadly distributional consequences of lawmaking. For example, Morton J. Horwitz, in The Transformation of American Law, 1780-1860 ( 1977), brilliantly argued the position that judges crafted a body of common law that benefited a relatively few well-heeled entrepreneurs at the expense of workers and farmers. Horwitz's work is one of the best, and most controversial, examinations of the development of nineteenth-century substantive law, notably torts, contracts, and real property. During the course of the century, Horwitz argues, judges became increasingly formal in their opinion writing as they consolidated the gains won by the capitalist class in alliance with the rising legal profession. Historians agree that antebellum judges grew increasingly attentive to policy making, but, as the reaction to Horwitz's book makes clear, they disagree sharply about the breadth and purposes of such policy making, let alone its distributive economic consequences. On these matters, see A. W. Brian Simpson, "The Horwitz Thesis and the History of Contracts," The University of Chicago Law Review 48 ( 1979); and Gary T. Schwartz, "Tort Law and the Economy in Nineteenth-Century America: A Reinterpretation," The Yale Law Journal 90 ( 1981).



Perhaps the most original challenge to the Horwitz thesis comes from John P. Reid, an expert in the history of the legal culture of the American West. The notion that an underlying behavioralism of law guided nineteenth-century Americans in their economic relations is imaginatively argued by Reid in Law for the Elephant: Property and Social Behavior on the Overland Trail ( 1980). Other studies of western legal history have raised still more questions about the Horwitz thesis, which drew most of its examples from New England and the Middle Atlantic states. Gordon Bakken, for example, paints a complex picture of public and private law developments in the Rocky Mountain West that tends to support many features of the Hurst thesis. See, for example, The Development of Law on the Rocky Mountain Frontier: Civil Law and Society, 1850-1912 ( 1983), and Bakken, Rocky Mountain Constitution Making, 1850-1912 ( 1987). On developments in western water law that run counter to the stark outlines of the Horwitz thesis, see Donald J. Pisani, "Enterprise and Equity: A Critique of Western Water Law in the Nineteenth Century," The Western Historical Quarterly 18 ( 1987). Pisani makes the important point, echoed in the work of Scheiber and others, that courts often took a broader view of economic development than state legislatures, which were much more susceptible to political and economic pressures. The problem of western legal history, of course, is one of assessing properly the relationship between economic, ecological, and legal change. Indicative of what can be done is Arthur F. McEvoy, The Fisherman's Problem: Ecology and Law in the California Fisheries 1850-1980 ( 1986).

The Horwitz thesis has encountered difficulties in other areas. Horwitz refused to take public-law developments seriously, and he badly neglected statutory developments. As Kent Newmyer shows in his splendid biography of Joseph Story, Supreme Court Justice Joseph Story: Statesman of the Old Republic ( 1985), private and public law themes in this important nineteenth-century jurist responded to the republican values of the Revolution rather than to any crass materialism. Moreover, Harry N. Scheiber argues that judicial policy making was also compatible with the idea that the public had certain rights that judges were bound to uphold through the law. The influence of this so-called public-interest or public-purpose doctrine is treated in Scheiber, "The Road to MUNN: Eminent Domain and the Concept of Public Purpose in the State Courts," in Law in American History, edited by Donald Fleming and Bernard Bailyn

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( 1971). Scheiber has elaborated other parts of this important argument in several articles, including "Property Rights and Public Purpose in American Law," Proceedings of the International Economic History Association, 7th Congress 1 ( 1978). Tony A. Freyer has worked on many of the same themes, and his "Negotiable Instruments and the Federal Courts in Antebellum American Business," Business History Review 50 ( 1976) challenges parts of the Horwitz thesis. Moreover, Freyer has raised significant questions about the applicability of the Horwitz thesis to the nineteenth-century South as a whole. See "Law and the Antebellum Southern Economy: An Interpretation," in Ambivalent Legacy, edited by Bodenhamer and Ely ( 1984).

Important aspects of American economic growth occurred beyond the immediate reach of the courts. Legislators, for example, engaged in various schemes of economic development, responding as they did to the variety of political pressures that played on them. A particularly good study of the interaction of government and the economy during the period is Harry N. Scheiber, Ohio Canal Era: A Case Study of Government and the Economy, 1820-1861 ( 1969), which fits legislative activity to the concept of distributive economic justice. These issues of state intervention in support of internal improvements often sparked heated constitutional debate in the states. The broad outlines of these developments are sketched in Morton Keller, "The Politics of State Constitutional Revision, 1820-1930," in The Constitutional Convention as an Amending Device, edited by Kermit L. Hall, Harold M. Hyman, and Leon V. Sigal ( 1981).

Legislative authority shaped other areas of economic activity. On corporation law, see Ronald E. Seavoy, The Origins of the American Business Corporation, 1784-1855 ( 1985); on debtor-creditor relations, see Peter J. Coleman, Debtors and Creditors in America: Insolvency, Imprisonment for Debt, and Bankruptcy, 1607-1900 ( 1974); and on bankruptcy Charles Warren , Bankruptcy in United States History ( 1935).

The relationship among technological, economic, and legal changes has received only cursory attention, but it deserves much more. For good examples of what can and should be done, see Stanley I. Kutler, Privilege and Creative Destruction: The Charles River Bridge Case ( 1971); John G. Burke, "Bursting Boilers and Federal Power," Technology and Culture 71 ( 1966); and Elizabeth B. Monroe, "Spanning the Commerce Clause," The American Journal of Legal History 32 ( 1988).

All of this vigorous involvement by the state (whether through judges, through legislators, or later in the century, through regulators) calls into question the traditional notion of laissez-faire. The responsiveness of lawmakers to constituent economic interests, the rise of protective legislation for women and children in the industrial work place, and the emergence of economic regulation in the name of the public interest are skillfully analyzed in William E. Nelson, The Roots of American Bureaucracy 1830-1900 ( 1982). Nelson's book is ar excellent example of the connections between themes of legal, intellectual, and social development before and after the Civil War. Nelson stresses the way in which the social scientific revolution, the quest for legal science, and the moral energies of reform combined during the Industrial Revolution to produce new regulatory schemes that limited traditional distributive politics.

A similar reevaluation of the relationship of the late- nineteenth-century judiciary to corporate interests is also under way. Michael Les Benedict, "Laissez-Faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism," Law and History Review 3 ( 1985), stresses that conservative law scholars and judges during the era denounced protective legislation in part because it offended their social and political sensibilities, but Benedict also shows that they had a sincere interest in liberty as a matter of constitutional right. Melvin Urofsky , "State Courts and Protective Legislation during the Progressive Era: A Reevaluation," The Journal of American History 72 ( 1985), argues that both state and federal appellate court judges sometimes delayed the acceptance of protective legislation, but that they ultimately blocked very little of it.

The relationship of industrialization to legal change (of the relative places of capital, labor, and the legal profession) is an important yet unresolved issue in the literature of American legal

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history. Morton Keller, Affairs of State: Public Life in Late Nineteenth Century America ( 1977), is particularly good at connecting constitutional, legal, and political change. Keller makes an important case for the promotional role played by legislators at the state and federal level during these years, and he gives serious attention to tax policy. Keller also shows the ways in which the regulatory state emerged to deal with the complex of problems created by industrialization. Harry N. Scheiber, in "Property Law, Expropriation, and Resource Allocation by Government, 1789-1910," in American Law and the Constitutional Order, edited by Friedman and Scheiber ( 1978), also stresses the interventional and developmental role of government. Other scholars, however, believe that efforts to control the consequences of industrialization through regulation proved fitful and ineffective. Stephen Skowronek, Building A New American State: The Expansion of National Administrative Capacities, 1877-1920 ( 1982), deemphasizes the importance of national administrative bodies, arguing that the traditional politics of patronage and distribution of economic goods severely limited national regulatory initiatives. Skowronek, unlike Keller, fails to give sufficient attention to developments in the states, where regulation made its most important strides. Both Skowronek and Keller can be usefully complemented by reading Thomas K. McGraw , Prophets of Regulation: Charles Francis Adams, Louis D. Brandeis, James M. Landis, and Alfred E. Kahn ( 1984).

Other aspects of business activity have received serious consideration. Charles W. McCurdy, "The Knight Sugar Decision of 1895 and the Modernization of American Corporation Law, 1869-1903," Business History Review 53 ( 1979), argues that corporation law became increasingly national in scope as federal judges resisted the continuing efforts by the states to carve out special preserves for local businesses. McCurdy has also shown, in "American Law and the Marketing Structure of the Large Corporation," The Journal of Economic History 38 ( September 1978), how technological advances in the late nineteenth and early twentieth centuries reformulated traditional business relationships and corporate structures. The tension between localism and nationalism is also assessed by Tony A. Freyer, Forums of Order: The Federal Courts and Business in American History ( 1979).

 


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