Epilogue: More Like a River than a Rock 4 page

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Bibliographical Essay

The bibliographical essay that follows recognizes those scholars in history, law, political science, and criminal justice studies on whose work I have relied heavily. However, this essay is not comprehensive, in that it covers neither all of the literature from which this book is drawn nor all of the literature bearing on particular subjects. Readers seeking a broad bibliography can turn to several guides. The most extensive is Kermit L. Hall (compiler), A Comprehensive Bibliography of American Constitutional and Legal History, 5 volumes ( 1984). Also useful are the bibliographies that accompany the major historical texts in public and private law. The former is covered in Alfred H. Kelly, Winfred A. Harbison, and Herman J. Belz, The American Constitution: Its Origins and Development, 6th Ed. ( 1983) and Melvin I. Urofsky, A March of Liberty: A Constitutional History of the United States ( 1988). The latter is the subject of Lawrence M. Friedman , A History of American Law, 2nd Ed. ( 1985).

The American Constitution and A History of American Law have significance much beyond their fine bibliographies. Both have shaped the course of teaching and writing about the history of public and private law, and both (less Friedman than Belz, et al.) have perpetuated the traditional division between public and private law themes. In the past decade or so, however, scholars working on the history of American legal culture have sought to merge the two fields. The reasons behind this development are complex, but in the simplest terms they reflect the tremendous impact of social history on the writing of all American history. The main lines of development are addressed in Kermit L. Hall, "The Magic Mirror: American Constitutional and Legal History," International Journal of Social Education 1 ( 1987). The most cogent argument for the reciprocal and reinforcing nature of constitutional and legal history can be found in Harry N. Scheiber , "American Constitutional History and the New Legal History: Complementary Themes in Two Modes," The Journal of American History 68 ( 1981). On the enduring ties between constitutional and social history, see James G. Randall, "The Interrelation of Social and Constitutional History," The American Historical Review 35 ( 1929). A similar call for a balancing of the traditional case law approach with an external history of constitutional development has been made by Paul L. Murphy in "Time to Reclaim: The Current Challenge of American Constitutional History," The American Historical Review 69 ( 1963). William E. Nelson, in an equally cogent treatment, concludes that efforts at integration are likely to fail and

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questions whether legal history--under ideological pressure from the right and left--can ever mature into a distinct field: "Standards of Criticism," in The Literature of American Legal History, edited by Nelson and John P. Reid ( 1985). Most of this volume is devoted to review essays that examine major developments in writing about legal history since the early 1960s. This volume is an ideal starting point for anyone interested in understanding the torrent of writing in legal history during the past two decades. An even more extensive collection, discussing almost every major area of the history of American legal culture, can be found in Kermit L. Hall , ed., United States Constitutional and Legal History: Major Historical Essays, 20 volumes ( 1987). The first volume, Main Themes in United States Constitutional and Legal History, covers all of the major historiographical and interpretive views about the history of American legal culture, including the radical attack of the critical legal studies (CLS) movement on American legal institutions and practices. Wythe Holt, ed., Essays in Nineteenth-Century American Legal History ( 1976), is also useful, as is Lawrence M. Friedman and Harry N. Scheiber, eds., American Law and the Constitutional Order: Historical Perspectives ( 1978). Another particularly good collection of essays dealing with American legal history was published as a symposium issue in William & Mary Law Review 23 ( 1982). Wythe Holt essay on the contributions of Morton J. Horwitz and his influence on CLS is particularly instructive.

During the bicentennial of the federal Constitution, several journals produced special issues devoted to the document's history. See, for example, "The Constitution in American Life: A Special Issue," Journal of American History 74 ( 1987) and "The Constitution of the United States," The William and Mary Quarterly 44 ( 1987). Most bicentennial efforts, including those listed above, concentrated on the federal document, much to the neglect of state constitutions, constitution making, and constitutionalism. The best introduction to state developments can be found in a symposium issue, "State Constitutional Design in the Federal System," Publius: The Journal of Federalism 12 ( 1982).

Just as the scholarly literature has grown, so too has the availability of teaching materials. The texts of Belz et al. and Friedman have educated the modern generation of Americans about its legal heritage. Both books offer an external rather than a technical view ( Friedman more than Belz, et al.) of American legal development, and Friedman has pioneered the concept of legal culture, a theme he addresses in both American Law ( 1984) and in Total Justice ( 1985) and one I have drawn on heavily. Friedman A History of American Law was a pathbreaking study that helped to set the agenda for further study of legal history. As Friedman impressive list of publications makes clear, he, along with James Willard Hurst and Harry N. Scheiber, are the dominant figures in the history of American legal culture. Another important scholar is Melvin I. Urofsky , whose The March of Liberty: A Constitutional History of the United States ( 1988) offers a liberal analysis of major public-law themes with some passing attention to the development of private law and legal institutions. Also, Borzoi Books/Knopf has brought out a series of short paperbacks, which together cover the main periods of American legal development by combining brief interpretive essays of a period with representative documents. See Stephen Botein , Early American Law and Society ( 1983); George Dargo, Law in the New Republic: Private Law and the Public Estate ( 1983); Jamil S. Zainaldin, Law in Antebellum Society: Legal Change and Economic Expansion ( 1983); Jonathan Lurie, Law and the Nation, 1865-1912 ( 1983); and Gerald L. Fetner, Ordered Liberty: Legal Reform in the Twentieth Century ( 1983). The casebook method has also found its way into the teaching of American legal culture. Law and American History: Cases and Materials ( 1980), edited by Stephen B. Presser and Jamil S. Zainaldin , treats both private and public law developments, although it does so with disappointingly little attention to such matters as the sociolegal history of women, free blacks, children, and criminals. Other works that broadly conceptualize the nation's legal history are Grant Gilmore , The Ages of American Law ( 1977), which needlessly dismisses the first three hundred years of the nation's history as irrelevant to the study of its legal past, and Samuel Walker, Popular Justice: A History of American Criminal Justice ( 1980), which is a valuable survey of

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the evolution of the American criminal justice system. Also useful is Herbert A. Johnson, History of Criminal Justice ( 1988). John T. Noonan Jr., Persons and Masks of the Law: Cardozo, Holmes, Jefferson, and Wythe as Makers of the Masks ( 1976), while far from a comprehensive history of American legal culture, does offer an essentially legal realist vision cloaked in Platonic moral imperatives, arguing that too often American lawmakers have chosen to cling to neutral rules--the "masks of the law"--rather than forging a "person-centered" legal culture. G. Edward White, The American Judicial Tradition: Profiles of Leading American Judges ( 1976), surveys the individual performances of notable judges to show how economic, social, political, and especially intellectual trends have shaped great judicial decisions and to reveal the ways in which the awesome mantle of judicial power often transformed political partisans into judicial statesmen and middle-of-the-road politicians into ideologues.

No other scholar has had greater influence on the field of legal history than James Willard Hurst . His The Growth of American Law: The Law Makers ( 1950) marked the beginning of the contemporary surge in writing about legal history. Not only was this book the most accessible of Hurst's works, but it also demonstrated the ways in which private and public law themes could be integrated. Hurst also argued persuasively that legal history encompassed what he called the "agencies of law": constitutional conventions, legislatures, administrative bodies, and the bar. Hurst certainly took the work of judges and courts seriously, but he made the basic point, often forgotten by scholars who worship his name but show signs of not having read his work, that the variety and diversity of lawmaking bodies has been an important feature of the nation's legal history. Hurst's other work was significant for the stress that it placed on the interaction of legal and economic development. In works such as Law and the Conditions of Freedom in the Nineteenth-Century United States ( 1956), Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin, 1836-1915 ( 1964), and Law and Markets in United States History: Different Modes of Bargaining among Interests ( 1982), Hurst portrayed an essentially pluralist-consensus view of the relationship of law and economic growth, with the law distributing broadly the fruits of economic development. Hurst pursued this theme of consensus in another important book, Law and Social Order in the United States ( 1977).

Hurst's conclusions have come under increasing attack from scholars who believe that the evidence reveals a legal past in which the law encouraged a maldistribution of wealth: the rich got richer. Several CLS historians have taken direct aim at Hurst's arguments. Morton J. Horwitz, Mark V. Tushnet, and Robert Gordon, for example, have authored important criticisms of Hurst's findings (but not about his scholarship). Their attack, which centers on Hurst's assessment of the distributive consequences of American law, is summarized and analyzed in Kermit L. Hall, "The Magic Mirror: American Constitutional and Legal History." International Journal of Social Education 1 ( 1987). An cogent critique of Hurst's work and of his contributions to the field, is presented in Harry N. Scheiber, "At the Borderland of Law and Economic History: The Contributions of James Willard Hurst," The American Historical Review 75 ( 1970) and Scheiber, "Constitutional History and the New Legal History."

Hurst also stressed the sectional and regional differences in American legal culture, and historians have recently moved beyond the restricted confines of New England and the Middle Atlantic states. While legal historians accept that a degree of diversity has characterized legal developments in the states and regions, they are hardly of one mind about the extent of these differences. For a discussion of the issue of intersectional variety in legal culture, see, for example, the essays in David J. Bodenhamer and James W. Ely Jr., eds., Ambivalent Legacy: A Legal History of the South ( 1984); Kermit L. Hall and James W. Ely Jr., An Uncertain Tradition: Constitutionalism and the History of the South ( 1988); and Kermit L. Hall, "The 'Magic Mirror' and The Promise of Western Legal History," The Western Historical Quarterly 18 ( 1987). On the persistent provincialism behind much American law, whether positive or common law, see Harry N. Scheiber, "Xenophobia and Parochialism in the Early History of American Legal Process: From the Jacksonian RevolutiOn to the Sagebrush Rebellion," William& Mary Law Review 23.

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& Mary Law Review 23 ( 1982). An excellent collection of essays on the Louisiana civil law system is Edward F. Haas, ed., Louisiana's Legal Heritage ( 1983).

The Colonial Era

The history of colonial America rests on a rich historiographical tradition, but historians of American legal culture have often treated it as merely a prelude to the national history of American law. Stanley N. Katz, "The Problem of Colonial Legal History," in Colonial British America. Essays in the New History of the Early Modern Era, edited by Jack P. Greene and J. R. Pole ( 1984), vigorously challenges this practice and urges legal historians to take the colonial era seriously. For an excellent example of what can be done, see David T. Konig, Law and Society in Puritan Massachusetts, Essex County, 1629-1692 ( 1979). Although the disregard of colonial legal history was never as great as Katz argued, it has only recently begun to receive its scholarly due. George L. Haskins and Julius Goebel Jr., were pioneers in the field. Haskins Law and Authority in Early Massachusetts: A Study in Tradition and Design ( 1960) connected social, political, and legal developments and, as such, offered a model of sorts for what came to be called the "new" legal history, which sought an external perspective on the internal developments of the law. Goebel pursued a similar tact in "King's Law and Local Custom in Seventeenth-Century New England," Columbia Law Review 31 ( 1931). Along with T. Raymond Naughton, Goebel also opened up the study of the colonial criminal justice system, and Law Enforcement in Colonial New York: A Study in Criminal Procedure, 1664-1776 ( 1970) has been particularly influential. There is no general history of colonial legal development, although Botein Early American Law and Society, on which I have drawn heavily, offers a fine survey full of imaginative insights. Also useful is David H. Flaherty, ed., Essays in the History of Early American Law ( 1969), although subsequent scholarship in the fast-developing field has dated some of the essays. One example of the way in which new writing has reshaped understanding of basic themes, such as the reception of the common law, is David Grayson Allen, In English Ways: The Movement of Societies and the Transferral of English Local Law and Custom to Massachusetts Bay in the Seventeenth Century ( 1981). The actual work of the county courts, which were the backbone of the legal system in many of the colonies, is ably treated in Hendrick Hartog , "The Public Law of a County Court: Judicial Government in Eighteenth-Century Massachusetts," The American Journal of Legal History 20 ( 1976). Richard B. Morris, Studies in the History of American Law, with Special Reference to the Seventeenth and Eighteenth Centuries, 2nd Ed. ( 1959), remains valuable, although his judgment about the place of colonial women before the law has come under withering attack. Indeed, writing about the legal history of colonial women has attracted considerable attention, especially as it relates to property rights and inheritance. On these matters, see, for example, Marylynn Salmon, Women and the Law of Property in Early America ( 1986), and Linda Grant De Pauw, "Women and the Law: The Colonial Period," Human Rights 6 ( 1977). On the legal development of inheritance (for both women and men), see Carole Shammas, Marylynn Salmon, and Michel Dahlin, Inheritance in America from Colonial Times to the Present ( 1987).

Other aspects of colonial law and society have also received treatment. The literature on the law of slavery is quite dense, but William W. Wiecek, "The Statutory Law of Slavery and Race in the Thirteen Mainland Colonies of British America," The William and Mary Quarterly 34 ( 1977), is particularly valuable. The collision between white settlers and native Americans is analyzed in Yasuhide Kawashima, Puritan Justice and the Indian: White Man's Law in Massachusetts, 1630-1763 ( 1986).

Colonial criminals, the social bases of crime, and dispute resolution in general have received attention, although much more work, especially on the southern colonies, remains to be done.

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Particularly valuable are Bradley Chapin, Criminal Justice in Colonial America, 1606-1660 ( 1983); Douglas Greenberg, Crime and Law Enforcement in the Colony of New York 1691-1776 ( 1976); and Joseph H. Smith, ed., Colonial Justice in Western Massachusetts (1639-1702), The Pynchon Court Record, an Original Judges' Diary of the Administration of Justice in the Springfield Courts of Massachusetts Bay Colony ( 1961), the last of which contains an informative introduction. Also valuable, on the civil side, is William E. Nelson, Dispute and Conflict Resolution in Plymouth County, Massachusetts, 1725-1825 ( 1981). Nelson' s The Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760-1830 ( 1975), while covering the era of the Revolution and the early nation, nonetheless offers valuable insights into the operation of late colonial law and society. Bruce Mann Neighbors and Strangers: Law and Community in Early Connecticut ( 1987) is particularly good at showing the way in which once-neighborly modes of dispute settlement yielded, by the American Revolution, to a legal system that treated neighbors and strangers alike.

The development of substantive private law and the legal profession in the colonial era both require much more attention than historians have given them. Paton Yoder, "Tavern Regulation in Virginia: Rationale and Reality," The Virginia Magazine 87 ( 1979), suggests what can be done to link the former with economic developments. John M. Murrin, "The Legal Transformation: The Bench and Bar of Eighteenth-Century Massachusetts," in Colonial America: Essays in Politics and Social Development, edited by Stanley N. Katz and John Murrin ( 1983), provides considerable insight into the evolution of colonial legal institutions and lawyers.

The Revolution, the Constitution, and Law in the New Nation

The literature on the American Revolution and the Constitution is enormous, although little of it assesses the ways in which the Revolution transformed American legal culture. Hendrick Hartog , ed., Law in the American Revolution and the Revolution in the Law ( 1981), offers a good starting point. So, too, does the work of John Phillip Reid, who has written extensively on the legal background of the Revolution and who has integrated these concerns into a general history of early American constitutional development. See, for example, Reid In Defiance of the Law: The Standing Army Controversy, the Two Constitutions, and the Coming of the American Revolution ( 1981), and Constitutional History of the American Revolution: The Authority of Rights ( 1986). In this book, I have given substantial emphasis to the Writs of Assistance Cases as examples of the way in which legal quarrels were escalated into constitutional conflicts over basic rights. M. H. Smith, The Writs of Assistance Case ( 1978), is the authoritative study. Equally valuable is Hiller B. Zobel, The Boston Massacre ( 1970). On the emergence of constitutional values before the Constitution, see George Dargo, Roots of the Republic: A New Perspective on Early American Constitutionalism ( 1974).

The rise of revolutionary ardor, the emergence of republican constitutional theory, and the relationship of both to the rule of law are examined in several important works. Gordon Wood The Creation of the American Republic, 1776-1787 ( 1969) is seminal, but it should also be read along with Reid's works cited above and Forrest McDonald brilliant Novus Ordo Seclorum: The Intellectual Origins of the Constitution ( 1985). The role of the states in the development of constitutional norms, and the importance of the states as laboratories in constitution making, are explored in Willi Paul Adams, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era ( 1980). The problem of the place of the states in the new federal system is the subject of Peter S. Onuf, The Origins of the Federal Republic: Jurisdictional Controversies in the United States, 1775-1787 ( 1983), a book that delivers far more than its title promises. Perhaps the most important essay about the origins of American federalism, a concept that figured prominently in the history of the nation's legal

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culture, is Harry N. Scheiber, "Federalism and the Constitution: The Original Understanding," in American Law and the Constitutional Order: Historical Perspectives, edited by Friedman and Scheiber ( 1978). The argument that slavery was crucial to the formation of the Constitution is ably made by Paul Finkelman, "Slavery and the Constitutional Convention: Making A Covenant with Death," in Beyond Confederation: Origins of the Constitution and American National Identity, edited by Richard Beeman, Stephen Botein, and Edward C. Carter, II ( 1987). The emergence of American citizenship in the Revolution and the subsequent impact of the Civil War amendments on it is ably analyzed in James H. Kettner, The Development of American Citizenship, 1608-1870 ( 1978).

The emergence of a distinctive legal culture in the new nation is examined in several works. On the practice of judicial review, see Kermit L. Hall, Judicial Review in American History ( 1985), and, for its political implications in early state and national politics, see Richard E. Ellis, The Jeffersonian Crisis: Courts and Politics in the Young Republic ( 1971). The beginnings of the federal judicial system are analyzed in Julius Goebel Jr., Antecedents and Beginnings to 1801 in The Oliver Wendell Holmes Devise History of the Supreme Court, vol. 1 ( 1971), and, for the lower federal courts, Mary K. B. Tachau, Federal Courts in the Early Republic: Kentucky, 1789-1816 ( 1978). The use of impeachment as a means of separating law from politics, a concern of many public figures in the new nation, is explored by Peter C. Hoffer and N. E. H. Hull , Impeachment in America, 1635-1805 ( 1984). Leonard W. Levy, Thomas Jefferson and Civil Liberties: The Darker Side ( 1963), asserts that the Federalists were not the only partisans in the new nation willing to merge their political ambitions with legal authority.

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