The Transformation of American Law, 1780-1860 (Studies in Legal History) PDF
Preview The Transformation of American Law, 1780-1860 (Studies in Legal History)
STUDIES IN LEGAL HISTORY PUBLISHED IN ASSOCIATION WITH THE AMERICAN SOCIETY FOR LEGAL HISTORY Editor: Stanley N. Katz Editorial A dvisory Board John D. Cushing John P. Dawson Lawrence M. Friedman Charles M. Gray Oscar Handlin George L. Haskins J. Willard Hurst S. F. C. Milsom A. Arthur Schiller Joseph H. Smith L. Kirivin Wroth THOMAS J. WILSON PRIZE The Board of Syndics of Harvard University Press has awarded this book the seventh annual Thomas J. Wilson Prize, honoring the late director of the Press. The Prize is awarded to the best first book accepted by the Press dur- ing the calendar year. THE TRANSFORMATION OF AMERICAN LAW, 1780-1860 Morton J. Horwitz HARVARD UNIVERSITY PRESS CAMBRIDGE, MASSACHUSETTS, AND LONDON, ENGLAND Copyright © 1977 by the President and Fellows of Harvard College All rights reserved Printed in the United States of America Library of Congress Cataloging in Publicatz·on Data Horwitz, Morton J 1938- The transformation of American law, 1780-1860. (Studies in legal history) Includes index. 1. Law- United States-History and criticism. I. Title. II. Series. KF366.H6 346'.73'009033 76-26500 ISBN 0-674-90371-4 For Sandra Acknowledgments HAPTERS I, II, and VIII and portions of Chapter VI have C previously appeared in Perspectz'ves z'n A merz'can HzstorYJ the Universz'ty of Chz'cago Law Revz'ewJ the A merz'can Journal of Legal HzstorYJ and the Harvard Law ReviewJ respectively. I wish to gratefully acknowledge the following institutions for allowing me to use and quote from their manuscript collections: the Harvard Law School Library, the New York Historical Society, the Swem Library of the College of William and Mary, the Massachu- setts Historical Society. Erika Chadbourn, Edith Henderson, and Margaret Moody of the Harvard Law School Library have assisted me in many ways. Charles Cullen, of The Papers ofJohn MarshallJ has also been very helpful. My secretaries, Mary Malone and Susan Levin, and my research assistants, John Fisher, Robert Rosen and Stephen Yeazell, were all extraordinarily giving of their time and ep.ergies. Several of my colleagues generously read portions of the manu- script: John P. Dawson, Andrew Kaufman, and Robert Keeton. Duncan Kennedy, Alfred Konefsky, and William Nelson made searching criticisms at various stages of this work. Professor Nelson also graciously shared with me the fruits of his own research into the Massachusetts court records. Stanley N. Katz, editor of this series, has given me constant support and help for many years . . Thanks are due for generous research support from the Russell Sage Foundation, the Charles Warren Fund of the Harvard Law School, the American Philosophical Society, and the National En- dowment for the Humanities. I also wish to express my debt and Vlll ACKNOWLEDGMENTS gratitude to Dean Albert M. Sacks of the Harvard Law School for unwavering support of my scholarly efforts. Finally, I wish to acknowledge the help given by the Harvard Uni- versity Press; by Aida Donald, Joan Ryan, my editor, and Nancy Donovan, who compiled the index. Contents Introduction Xl I The Emergence of an Instrumental Conception of Law 1 II The Transformation in the Conception of Property 31 III Subsidization of Economic Growth through the Legal System 63 IV Competition and Economic Development 109 V The Relation between the Bar and Commercial Interests 140 VI The Triumph of Contract 160 The Equ£table Concept£on ofContract £n the E£ghteenth Century The Rzse ofa Market Economy and the Development of the W£ll Theory of Contract Custom and Contract Tort and Contract
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