Law in the American Revolution and the Revolution in Law: A Collection of Review Essays on American Legal History PDF
Preview Law in the American Revolution and the Revolution in Law: A Collection of Review Essays on American Legal History
New York University School of Law Series in Legal History: 3 I LAW IN THE AMERICAN REVOLUTION AND THE REVOLUTION IN THE LAW '■> c»o c"*o A Collection of Review Essays on American Legal History oo c*«o EDITED BY HENDRIK HARTOG Linden Studies in the Historiography of American Law New York University Press • New York and London -1981 3S~2 Copyright © 1981 by New York University Library of Congress Cataloging in Publication Data Main entry under title: Law in the American Revolution and the revolution in the law. (Series in legal history / New York University School of Law) Bibliography: p. Includes index. Contents: A great case makes law not revolution / Bruce H. Mann—The ordeal by law of Thomas Hutchinson / John Phillip Reid—The irrelevance of the declaration / John Phillip Reid—[etc.] 1. Law—United States-—History and criticism— Addresses, essays, lectures. I. Hartog, Hendrik, 1948- . II. Series: Series in legal history. KF352.A2L38 349-73 81-38336 ISBN 0-8147-3413-8 347-3 AACR2 Manufactured in the United States of America For RUSSELL D. NILES of New York University Professor of Law 1929-1973 Dean 1948-1964 Chancellor 1964-1966 President Bar Association City of New York 1966-1968 Contents Introduction ix Hendrik Hartog Part I: Law in the American Revolution A Great Case Makes Law Not Revolution 3 Bruce H. Mann The Ordeal by Law of Thomas Hutchinson 20 John Phillip Reid The Irrelevance of the Declaration 46 John Phillip Reid Part II: The Revolution in Law Accounting for Change in American Legal History 93 Robert W. Gordon Revising the Conservative Tradition: Towards a New American Legal History 113 Stephen B. Presser Losing the World of the Massachusetts Whig 143 Hendrik Hartog Light in Ashes: The Problem of “Respect for the Rule of Law” in American Legal History 167 Peter R. Teachout Part III: Conclusion Distancing Oneself from the Eighteenth Century: A Commentary on Changing Pictures of American Legal History 229 Hendrik Hartog Contributors 258 Index 261 Vll Introduction C-'O Cvo I I MAY BE too soon to publish a collection of review es¬ says in American legal history. It is only 15 years since Daniel Boorstin labelled the history of American law an unexplored "Dark Continent.” Until very recently, historio¬ graphical work in American law inevitably resolved into an analysis of why the history of American law had not been written. Now that exploration is well begun, now that sub¬ stantive historical work is proceeding in law schools and in history faculties, it may be that one should sit back and await results. Silently. This book, however, is not intended to provide a mature and considered reflection on a completed corpus of schol¬ arship. Its purpose is to introduce historians and other non- legal scholars to the kind of historiographical writing that is going on in American law journals. Not all historians have access to a law library; of those who do, not all, one might suspect, realize that there is anything in those endless stacks of journals worth reading. The eight essays in this volume, six of which were previously published in law reviews, indi¬ cate some of the ways law-trained legal historians, writing for an audience of lawyers, have defined the central issues tx Introduction X in recent American legal history. The six authois of these essays are all teachers in American law schools. Some of them have had graduate training in American history. They write as historians, but they also write as legal academics. In their work they suggest some of the tensions faced by schol¬ ars who attempt to straddle two academic communities. Legal history has always had a place in American legal education, but it has usually been a peripheral place: on the one hand devoted to offering a “perspective” (primarily in casebook introductions) for those who would demonstrate the learned and ancient stature of the legal profession, on the other hand relegated to small upper-level elective courses taught and taken by those hoping for a little anti¬ quarian relief from the rigors of legal education. Typically, the focus of scholarship was on establishing the origins of modern law in a distant—usually medieval—past and on demonstrating the continuity of law thereafter. What was thought of as legal history in American law schools was only tangentially related to the mainstream of professional American historical writing. It would be too much to say that all that is a thing of the past. But much has changed. The focus on origins and on continuity has faded, to be replaced by a more sociological, structural emphasis on the place of law in an American so¬ ciety. The relative constancy of law through time and space has become an empirical problem for investigation, rather than an assertion of faith. Legal historians now consider the concept of law itself as an artifact. They are learning to take an “external” perspective on the subject, learning to write “books about law” rather than “law books.” Today, a historian interested in the machinery of gover¬ nance and in the creation, legitimation, and maintenance of social norms cannot afford to ignore the writings of legal historians. Willard Hurst, Lawrence Friedman, and Morton Horwitz, to mention just three names, have become figures of some currency within general historical circles. For all that, the concerns and interests of legal historians who are law trained members of law faculties can still be distin- Introduction xi guished in some ways from the concerns and interests of their arts and science colleagues. In part their distinctive¬ ness rests on their willingness and ability to reclaim an “in¬ siders” perspective whenever it suits their purposes. John Reid, for example, in the essay on the historiography of the Declaration of Independence printed in this volume, offers a new context for understanding the Declaration by describ¬ ing it from the viewpoint of an eighteenth-century lawyer. But more importantly, the differences between legal histo¬ rians trained as lawyers and other legal historians may rest on the fact that a historian in a law school will be forced relatively f requently to justify the enterprise of history to an audience of lawyers and law students. The analyses of Mor¬ ton Horwitz’s The Transformation of American Law conducted by Stephen Presser and Peter Teachout in this volume are less about the historical accuracy of the argument than about the utility of the picture of the legal past Horwitz pre¬ sents for contemporary legal education and contemporary legal theory. In so doing, Presser and Teachout bring home to historians who have not been trained in the law the ways Horwitz’s own work has been critically shaped by his expe¬ rience of being a law professor. Their understanding of the tangled intellectual history of modern legal thought makes it possible for them to unravel themes in Horwitz’s book which might remain inaccessible to the untrained reader. In a very different way, Robert Gordon’s review of William Nelson’s The Americanization of the Common Law also illus¬ trates the particular perspective of a historian located within a law school community. Gordon’s argument might be re¬ solved into a plea that legal historians learn to resist the demand for relevance of their colleagues. For him it is a proper role of the legal historian to protect the complexity and the integrity of the past from any easy appropriation by authority hungry modern lawyers. This volume is divided into three parts. In the first part John Reid and Bruce Mann explore the place of legal events and legal discourse in the American Revolution. Their essays are examinations of the boundary between po- xii Introduction litical history and legal history, and they constitute critiques of two complementary historical assumptions: that legal events necessarily have political significance and that politi¬ cal events can he understood without sensitivity toward legal context. In the second part Robert Gordon, Stephen Presser, Peter Teachout, and I examine from a variety of perspectives the pictures of legal change in early American history presented in the recently published works of Wil¬ liam Nelson, Morton Horwitz, and John Reid. Gordon’s es¬ say analyzes the kinds of inferences about a legal system and culture that may legitimately be drawn from a historical record. Presser and Teachout, as I mentioned above, con¬ centrate their attention on the significance for the modern lawyer of a “transformed” historical understanding of the past. And in my review I attempt to elucidate the relation¬ ship between the “conditions of law” in Massachusetts Bay described by Reid and the pictures of late colonial society that have emerged from recent social historical writing. Fi¬ nally, in a concluding essay I outline a model description of the course of the whole of American legal history that I believe underlies a number of recently published works. Historians accustomed to strict page limits may find the length of these review essays surprising. A word or two of explanation may be in order. There are approximately 165 accredited law schools in this country, every one of which has at least one law review maintained as much for the ed¬ ucation of its student editors and note writers as because of the market for legal scholarship. There is no shortage of space in the world of the American law review. Young law professors usually come to teaching directly from three to five years of practice. Unlike historians and other academics most of them do not have a dissertation or other major piece of scholarship around which to organize their schol¬ arly productivity. A long book review thus becomes a plau¬ sible and available way for a young law teacher to organize his or her thinking about a subject and to prepare for the substantive scholarship which surely must follow. It is too soon for a balanced and considered study of the
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