The transformation of American law, 1870-1960 PDF
Preview The transformation of American law, 1870-1960
STUDIES IN LEGAL HISTORY PUBLISHED IN ASSOCIATION WITH THE AMERICAN SOCIETY FOR LEGAL HISTORY Editor: Stanley N. Katz Editorial Advisory 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 J. THOMAS WILSON PRIZE The Board of Syndics of Harvard University Press has awarded this book the seventh annual ThomasJ. Wilson Prize, honoringthelatedirectorofthe Press. ThePrizeis awarded to the best first book accepted by the Press dur ing the calendar year. THE TRANSFORMATION OF AMERICAN LAW, 1780-1860 J. Morton Horwitz HARVARD UNIVERSITY PRESS CAMBRIDGE, MASSACHUSETTS, AND LONDON, ENGLAND Copyright © 1977 bythe President and Fellows ofHarvard College All rights reserved Printed in the UnitedStatesofAmerica Library ofCongress Cataloging in Publicatz·on Data Horwitz, MortonJ 1938- The transformation ofAmerican 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 C HAPTERS I, II, and VIII and portions of Chapter VI have previously appeared in Perspectz'ves z'n Amerz'can HzstorYJ the Universz'ty ofChz'cago Law Revz'ewJ the Amerz'canJournal ofLegal HzstorYJ and the Harvard Law ReviewJ respectively. I wish to gratefully acknowledge the following institutions for allowingme to use andquote 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 alsograciouslysharedwithme thefruits ofhis 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 thehelpgiven bythe Harvard Uni versity Press; by Aida Donald, Joan Ryan, my editor, and Nancy Donovan, who compiled the index. Contents Introduction Xl I The Emergenceofan Instrumental Conception ofLaw 1 II The Transformation in the Conception ofProperty 31 III SubsidizationofEconomic Growth through the LegalSystem 63 IV Competition and Economic Development 109 V The Relation between the Bar and Commercial Interests 140 VI TheTriumphofContract 160 TheEqu£table Concept£onofContract £ntheE£ghteenth Century TheRzseofaMarketEconomyandthe Developmentofthe W£ll Theory of Contract CustomandContract Tort andContract
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