A History of American Law First edition by Friedman, Lawrence M. (1973) Hardcover - Hardcover

Friedman, Lawrence M.

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ISBN 10: 0671212265 ISBN 13: 9780671212261

Publisher: Simon & Schuster, 1973

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A History of American Law has become a classic for students of law, American history and sociology across the country. In this brilliant and immensely readable book, Lawrence M. Friedman tells the whole fascinating story of American law from its beginnings in the colonies to the present day. By showing how close the life of the law is to the economic and political life of the country, he makes a complex subject understandable and engrossing. "A History of American Law" presents the achievements and failures of the American legal system in the context of America's commercial and working world, family practices and attitudes toward property, slavery, government, crime and justice. Now Professor Friedman has completely revised and enlarged his landmark work, incorporating a great deal of new material. The book contains newly expanded notes, a bibliography and a bibliographical essay.

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About the Author:

Lawrence M. Friedman was born in 1930, educated at the University of Chicago where he earned his law degree, and admitted to the Illinois bar in 1951. He received a graduate degree from the University of Chicago Law School in English legal history. After serving in the United States Army, he practiced with a law firm in Chicago and subsequently entered the teaching profession. He has taught at St. Louis University, the University of Wisconsin, and, since 1968, at Stanford University, where he is now Marion Rice Kirkwood Professor of Law. He is the author of Contract Law in America: A Social and Economic Case Study (1965); Government and Slum Housing: A Century of Frustration (1968); Law and the Behavioral Sciences (coeditor; 1969, 2nd edition, 1977); The Legal System: A Social Science Perspective (1975); Law and Society: An Introduction (1977); American Law and the Constitutional Order: Historical Perspectives (coeditor, 1978); Law and Social Change in Mediterranean Europe and Latin America (coeditor, 1979); The Roots of Justice: Crime and Punishment in Alameda County, California, 1870-1910 (coauthor, 1981); American Law (1984); Your Time Will Come (1985); and Total Justice (1985). He has contributed more than eighty articles to legal and associated journals. Professor Friedman is the past president of the Law and Society Association, and a past Fellow of the Center for Advanced Study in the Behavioral Sciences and of the Institute for Advanced Study in Berlin. He is a Fellow of the American Academy of Arts and Sciences, and the recipient of a number of awards for writing and teaching. He is married and has two daughters.

CHAPTER 1

THE REPUBLIC OF BEES

REVOLUTIONARY ARDOR

In 1776, the colonies declared themselves independent. The bitter war that followed ended in an American victory. Peace, of course, raised as many questions of government as it answered. A plan of government is a plan for distribution of the power and wealth of a society. The choice of system, then, is no idle exercise in political theory. How to plan the new American government was the major policy issue of the late 18th century. The first grand scheme was embodied in the Articles of Confederation. It proved unsatisfactory to powerful circles in the country. After the failure of the Articles, a federal Constitution was drawn up, and ratified in 1787.

Each colony, too, underwent its own revolution. Colonies became states, and embarked on new courses of action with new problems and new programs. First, they had to fight a war and patch up domestic disruptions. All this called for a major outburst of lawmaking. In Pennsylvania, for example, a constitutional convention, in 1776, declared a general amnesty and established a new form of government. Old officials were replaced by men loyal to the Revolution. The ordinary business of government was to continue, where possible; and the emergencies of war had to be coped with. In October 1777, British troops "penetrated into [the] state, and after much devastation and great cruelty in their progress," seized Philadelphia; the state government then created a "council of safety," with vast and summary powers "to promote and provide for the preservation of the Commonwealth." It had power to seize goods "for the army and for the inhabitants," punish traitors, and "regulate the prices of such articles as they may think necessary." But the "ordinary course of justice" was to continue as far as feasible. In the same year, the legislature passed a bill of attainder against a number of men who had "traitorously and wickedly" gone over to the king. The state redefined and punished treason, declared bills of credit of the Continental Congress and the state to be legal tender; and, inevitably, legislated about the militia, army supplies, taxes, and the policy of war.

When the war ended, debates over law continued. The king of England and his government had been successfully overthrown. Should the king's law be also overthrown? Should ordinary private law be radically altered? The first generation seriously argued the question. The common law was badly tarnished; so was the reputation of the lawyers, many of whom had been Tories. It seemed to some men that new democratic states needed new institutions, from top to bottom, including fresh, democratic law. A pamphleteer, who called himself Honestus, asked, in 1786: "Can the monarchical and aristocratical institutions of England be consistent with...republican principles?" It was "melancholy" to see the "numerous volumes" of English law, "brought into our Courts, arranged in formidable order, as the grand artillery to batter down every plain, rational principle of law." Thomas Paine, an old firebrand, spoke for at least some zealots when he denounced, in 1805, the "chicanery of law and lawyers." He complained that Pennsylvania courts, even at that late date, had "not yet arrived at the dignity of independence." The courts, he said, still "hobble along by the stilts and crutches of English and antiquated precedents," which were often not democratic at all, but "tyrrannical." During Shays's Rebellion, in Massachusetts (1786), mobs stopped the courts from sitting, and forcibly staved off execution of judgments against debtors. It was easy to attribute class bias to the courts, and attribute this class bias in turn to the antiquated, oppressive, inappropriate common law.

There were two apparent alternatives to the stilts and crutches. The common law could be replaced by some rival system. Or all systems could be abandoned in favor of natural principles of justice. The first alternative had some slight basis, in hope if not in fact. There were other systems of law. After the French revolution, American liberals were particularly attracted to the French civil law. In the early 19th century, the Napoleonic Code served as a symbol and model of clarity and order. Some civil-law jurists were translated into English during this period: A Treatise on Obligations, Considered in a Moral and Legal View, "translated from the French of [Robert] Pothier," appeared in New Bern, North Carolina, in 1802. To some small extent, French scholars influenced American legal thought. Compared to civil law, common law seemed, to a number of jurists, to be feudal, barbaric, uncouth.

In hindsight, the common law had little to fear. It was as little threatened as the English language. The courts continued to operate, continued to do business; they used the only law that they knew. Few lawyers had any grasp of French. French lawbooks were rare and inaccessible; English authorities flooded the country. To be sure, there were some American jurists who had the education and skill to handle Continental law -- James Kent of New York, for example. Joseph Story, who served on the Supreme Court, was a tower of erudition. These men cited and used bits of foreign law in their writings and opinions. But they were not revolutionaries. They believed in purifying and improving the law, not in overthrowing it. They were willing to snatch doctrines and ideas from Continental Europe; but even English law did that. One of the culture heroes of the American legal elite was England's Lord Mansfield, who died in 1793. Mansfield was Scottish by birth and an ardent admirer of Roman-flavored civil law.

And of course the common law had many defenders. Not everybody saw the common law as old and despotic. It was also the birthright of free men, a precious inheritance, perverted by the British under George III, but still a vital reality. One rhetorical pillar of the men of 1776 was that the common law embodied fundamental norms of natural law. The first Continental Congress, in 1776, adopted a Declaration of Rights; it declared that the colonies were "entitled to the common law of England," in particular the right of trial by jury. Americans were also entitled to the benefit of those English statutes which "existed at the time of colonization; and which they have, by experience, respectively found to be applicable to their several local and other circumstances."

Common-law lawyers were among the heroes of the Republic. John Adams was one; Thomas Jefferson, for all his ambivalence toward common law and its judges, another. Lawyers mostly drafted the state and federal constitutions. Courts were increasingly manned by lawyers, who listened to the arguments of other lawyers. Lawyers moved west with the line of settlement; they swarmed into state capitals and county seats. Wherever one looked in political life -- in town, city, county, state, and national government -- the lawyers were there. Unlike some later revolutions, and some earlier colonial Utopias, the new republic did not try to do business without lawyers. Old lawyers continued to function, training new lawyers in their image, who, like their teachers, turned almost instinctively to common law. The common law was also a weapon of integration. The Northwest Ordinance imposed common law on the lands of the American frontier. In the prairies and forests, where French settlers lived and worked in the path of the American onrush, the common law was an agent of American imperialism.

The common law would have to be Americanized, of course. Now that the states had freedom to choose, what parts of English law would remain in force? This was a tortuous question, not easily solved. Many states passed statutes to define the limits of the law in force. A Virginia law of 1776 declared that the "common law of England, all statutes or acts of Parliament made in aid of the common law prior to the fourth year of the reign of King James the first, and which are of a general nature, not local to that kingdom...shall be considered as in full force." The Delaware constitution of 1776 (art. 25) provided that "The common law of England as well as so much of the statute law as has been heretofore adopted in practice in this State, shall remain in force," except for those parts which were "repugnant to the rights and privileges" expressed in the constitution and in the "declaration of rights."

The New York experience was particularly complex. A law of 1786 declared the common law in force, and such English statutes as were in effect in the colony on April 19, 1775. Later, New York specifically re-enacted some British laws -- the Statute of Frauds, for example, a law first passed in 1677, and which had virtually become a part of the common law. In 1788, a New York law, "for the Amendment of the Law, and the better Advancement of Justice," declared that "after the first day of May next," no British statutes "shall operate or be considered as Laws" in the state. The New York Constitution of 1821 (art. VII, sec. 13) stated that "Such parts of the common law, and of the acts of the legislature of the colony of New York, as together did form the law of the said colony" on April 19, 1775, and the resolutions of the colonial Congress, "and of the convention of the State of New York," in force on April 20, 1777, would continue to be law, unless altered or repealed, and unless they were "repugnant" to the constitution. No mention was made of British statutes; for good measure, an act of 1828 specifically pronounced the British statutes dead.

Yet even this flock of New York laws fell short of solving the problem. A New York court later held that some English statutes had become part of the "common law" of the colony. This meant that an undefinable, unknowable group of old laws somehow maintained a ghostly presence. They lived on, of course, only insofar as they were not "repugnant" to the constitution or unsuitable to conditions. One could never, then, be sure if an old law were dead or alive. New York was not the only state whose judges held that some of the old statutes were valid, and thus sentenced the legal public to a certain amount of uncertainty. To this day, an occasional case still turns on whether some statute or doctrine had been "received" as common law in this or that state. The question of "reception" had troubled the colonials too. Independence merely altered the form of the question. And in a broader sense, the question is an abiding one in all common-law jurisdictions. Judges must constantly re-examine the law, to see which parts still suit society's needs, and which parts must be thrown on the ash heap, once and for all.

The reception statutes dealt with the older English law. What about new law? There was, as expected, a strong burst of national pride. To Jesse Root of Connecticut, writing in 1798, it was "unnecessary, and derogatory" for courts of an independent nation to be governed by foreign law. His ideal was "the republic of bees," whose members "resist all foreign influence with their lives," and whose honey, "though extracted from innumerable flowers," was indisputably their own. In pursuit of the republic of bees, New Jersey passed a law, in 1799, that

no adjudication, decision, or opinion, made, had, or given, in any court of law or equity in Great Britain [after July 4, 1776]...nor any printed or written report or statement thereof, nor any compilation, commentary, digest, lecture, treatise, or other explanation or exposition of the common law,...shall be received or read in any court of law or equity in this state, as law or evidence of the law, or elucidation or explanation thereof.

Kentucky prohibited the mere mention of recent British law. Its statute, passed in 1807, declared that "reports and books containing adjudged cases in...Great Britain...since the 4th day of July 1776, shall not be read or considered as authority in...the courts of this Commonwealth." During Spring Term, 1808, Henry Clay, appearing before the court of appeals of Kentucky, "offered to read" a "part of Lord Ellenborough's opinion" in Volume 3 of East's reports; the "chief justice stopped him." Clay's co-counsel argued that the legislature "had no more power to pass" such a law than to "prohibit a judge the use of his spectacles." The court decided, however, that "the book must not be used at all in court."

But Lord Ellenborough was not so easily banished, in New Jersey, or Kentucky, or elsewhere. The New Jersey statute was repealed in 1819. As a practical matter, English law continued to be used by lawyers and courts, throughout the period, throughout the country. England remained the basic source of all law that was not strictly new or strictly American. The habits of a lifetime were not easily thrown over, despite ideology. Indigenous legal literature was weak and derivative. There was no general habit of publishing American decisions; American case reports were not common until a generation or more after Independence. To common-law lawyers, a shortage of cases was crippling. To fill the gap, English materials were used, English reports cited, English judges quoted as authority. In the first generation, more English than American cases were cited in American reports. Ordinary lawyers referred to Blackstone constantly; they used his book as a shortcut to the law; and Blackstone was English to the core. Sometimes curiously old-fashioned bits of law -- phrases, old doctrines, old writs -- turned up in curious places (for example, the American frontier); the reason was the ubiquity of Blackstone.

American law continued, in short, to borrow. The English overlay was obvious, pervasive -- but selective. The English doctrines that were invited to this country were those which were needed and wanted -- and only those. Sweeping changes took place in American law in the years between 1776 and the middle of the 19th century. During that time, there developed a true republic of bees, whose flowers were the social and economic institutions that developed in their own way in the country. They, not Lord Ellenborough and Lord Kenyon, were the lawmakers that made American law a distinctive system: a separate language of law within the family founded in England.

The second apparent alternative to the common law was also a mirage. To abolish the tyranny of lawyers and their rules, to reduce law to a common-sense system, at the level of the common man's understanding, a system of simple, "natural" justice: this was an age-old yearning, but it flared up with special vigor after 1776. As one citizen of Kentucky put it, the state needed "a simple and concise code of laws...adopted to the weakest capacity."

In part, the antilaw movement was an outgrowth of radical politics. One current of thought distrusted the common law on the grounds that it was remote from the needs of ordinary people, and was biased toward the rich. Another current of thought distrusted the law because it was archaic, inflexible, irrelevant; it did not suit the needs of merchant or businessman. Both groups could make common cause against lawyers' law, which suited nobody's wants but the lawyers. There was a general interest, then, in a reform of legal institutions, in which ...

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