Category: History of Law

12

The British Response to the Declaration of Independence

I’ve always thought that a great book is waiting to be written about the British perspective on the American Revolution.  For example, have you ever seen the official response to the Declaration by King George III?  I hadn’t until recently.  Here it is.

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His Majesty’s Most Gracious Speech to Both Houses of Parliament on Thursday, October 31, 1776

My Lords, and Gentlemen,

Nothing could have afforded Me so much Satisfaction as to have been able to inform you, at the Opening of this Session, that the Troubles, which have so long distracted My Colonies in North America, were at an End; and that My unhappy People, recovered from their Delusion, had delivered themselves from the Oppression of their Leaders, and returned to their Duty. But so daring and desperate is the Spirit of those Leaders, whose Object has always been Dominion and Power, that they have now openly renounced all Allegiance to the Crown, and all political Connection with this Country. They have rejected, with Circumstances of Indignity and Insult, the Means of Conciliation held out to them under the Authority of Our Commission: and have presumed to set up their rebellious Confederacies for Independent States. If their Treason be suffered to take Root, much Mischief must grow from it, to the Safety of My loyal Colonies, to the Commerce of My Kingdoms, and indeed to the present System of all Europe. One great Advantage, however, will be derived from the Object of the Rebels being openly avowed, and clearly understood. We shall have Unanimity at Home, founded in the general Conviction of the Justice and Necessity of Our Measures.

. . .

My Lords, and Gentlemen, in this arduous Contest I can have no other Object but to promote the true Interests of all My Subjects. No people ever enjoyed more Happiness, or lived under a milder Government, than those now revolted Provinces: the Improvements in every Art, of which they boast, declare it: their Numbers, their Wealth, their Strength by Sea and Land, which they think sufficient to enable them to make Head against the whole Power of the Mother Country, are irrefragable Proofs of it. My Desire is to restore to them the Blessings of Law and Liberty, equally enjoyed by every British Subject, which they have fatally and desperately exchanged for all the Calamities of War, and the arbitrary Tyranny of their Chiefs.

0

Los Angeles Civil Court Records, 1850-1859

This past summer, I spent a few weeks down at the Huntington Library in Pasadena, which houses Los Angeles County’s court records for the years 1850 to 1900.  There, I perused the Los Angeles District Court’s civil case files for the 1850-1859 time frame. (The district court of that era functioned as a state superior court does today.) I wanted to see what, if any, personal-injury actions were filed during that span—the Paleozoic Era of tort law—in what was (at the time) a very small, somewhat sleepy community.

The unsurprising answer: There weren’t a whole lot of personal-injury cases back then, at least in the district court. Out of the hundreds of case files that I reviewed, I didn’t come across even a single personal-injury case that sounded in negligence; there were four such cases that involved batteries or assaults. Debt-collection actions provided the vast majority of the district court’s docket. Other recurring case types included petitions for divorce; personal-service and other contract disputes; efforts (for naught) to recover on gambling debts; suits over horses, cattle, and timber that today, would sound in conversion or trespass to chattels; and a hodgepodge of other matters.

I wasn’t particularly surprised by the dearth of personal-injury lawsuits sounding in negligence. For one thing, there weren’t a whole lot of negligence lawsuits of any type, anywhere, back then, and there certainly wasn’t a robust infrastructure of caselaw and treatises that might advise small-town attorneys about how they should pursue a personal-injury claim sounding in negligence. Consider, for example, this 1852 New York  legal formbook.  The book includes draft complaints that allege claims for breach of promise to marry; “for keeping a dog used to bite mankind”; for criminal conversation with one’s wife; for debauching one’s daughter or servant; for assault and battery; and for false imprisonment–but nothing (aside from the vicious-dog suit, perhaps) that indicates how a negligence personal-injury suit should be alleged. Furthermore, 1850s Los Angeles wasn’t exposed to some potent harm-creating agents that would provide grist for the personal-injury mill (and catalyze claim consciousness among potential plaintiffs) in the decades to come. Among them, Los Angeles County wasn’t served by a railroad at the time, it didn’t boast other heavy industry, and it didn’t have the steamboat traffic that, say, Sacramento did.

I’m a torts partisan, but I still found the case files interesting. For one thing, depositions were a heck of a lot shorter back in the days before typewriters; the need to have a local notary transcribe the proceedings by hand apparently placed strict de facto limits on litigants’ ability to wear out a deposition witness with questions. Complaints were short and to the point, too, at least for the most part. Also, I wondered about the consequences of, or possible gamesmanship associated with, some local attorneys’ utterly inscrutable handwriting.

In case any of you are wondering how an 1850 tort case was pled, the following represents the entirety of a complaint (minus the caption and signatures) drafted by local attorneys and filed with the Los Angeles District Court that year:

Your petitioner George W. Robinson a resident citizen of the state and county aforesaid and plaintiff in this suit complaints of Jose Lugo, a citizen of the State of California and of the County of Los Angeles and Defendant in this suit for that whereas heretofore to wit on the 20th day of July AD 1850 in the county of Los Angeles and State of California the said Defendant with force and arms to wit with pistols [lassoes?] + guns then and there assaulted and violently beat the said plaintiff in his person inflicting upon him the said plaintiff [?] and various wounds and bruises to wit four severe wounds on his head four wounds on his right arm four wounds on the left arm ten wounds on the body ten wounds on the right led ten wounds on the left leg whereby and by reason whereof the said plaintiff was greatly injured suffered much pain and loss of blood was put to great expense in paying physicians to effect a cure of the aforesaid wounds and suffered much loss of time being unable by reason of said wounds to pursue his lawful and necessary business as he otherwise could and would have done and also put him the said plaintiff to much other trouble expense pain and inconvenience by reason of the aforesaid assault and battery, whereby and by reason whereof the plaintiff avers that he has been damnified and hath sustained damage to the amount of ten thousand dollars the said plaintiff further complains and states unto the Court that at the time and place aforesaid the said plaintiff then and there being a free citizen of the State of California and having a free full and perfect right to enjoy his liberty he the said Defendant then and there willfully maliciously and without any just or reasonable cause whatsoever with force and arms and deadly weapons (and without and legal process whatsoever) pursued seized upon and bound with cords the person of the Plaintiff thereby [?] him the said plaintiff of his liberty for a long space of time to wit for the space of three days whereby and by reason of the premises the plaintiff avers he was put to great pain and trouble in body and in mind as well as great inconvenience and loss of time whereby and by reason of the premises he avers that he has been damnified and hath sustain and demands of defendant damage to the amount of twenty thousand dollars and therefore he brings suit.

3

Are You Better Off Than You Were Four Years Ago?

We’re going to be hearing this question asked a lot over the next two months. I’m going to go out on a limb and speculate that most Democrats will answer the question with a “yes,” and most Republicans with a “no.”

Today, this phrase is most closely associated with Ronald Reagan, who used it to devastating effect in his 1980 debate with President Carter. Those of you who are pretty old, or who like reading books about the Great Depression, may recall that President Franklin D. Roosevelt asked his Fireside Chat listeners similar questions back in 1934, and invoked the same theme in his smashingly successful re-election campaign in 1936.

But the question (and its follow-ups, which recite specific ways in which you, or the country, may be better or worse off) is so obvious, and powerful, as a referendum on the incumbent’s tenure that it’d be surprising if FDR and his speechwriters were the first to think of it. And, it turns out, they weren’t. A quick search of old newspapers yielded this September 1900 edition of the Columbus (OH) Journal. If you follow the “Leading Questions” editorial (which begins in the middle of the page’s fifth column) to its bitter end, it provides:

WHOEVER YOU ARE

Are you not better off than you were four years ago? Are you not earning more money? Are you not spending more? Do you not wear better clothes? Do you not live better? Are you not happier? Do you want to go back again to those Democrat free-trade days? Is there any doubt about your vote?

I’ve also seen the same editorial in other newspapers printed during the 1900 campaign season, so I assume that a Republican official prepared the text and fed it to friendly newspaper editors across the country.

I tend to like the modern version of this series of questions better, since it eliminates the McKinley campaign’s unnecessary negatives. But the basic thrust of the message remains the same.

0

Stanford Law Review Online: Politicizing the Supreme Court

Stanford Law Review

The Stanford Law Review Online has just published a Note by Eric Hamilton entitled Politicizing the Supreme Court. Hamilton writes that the Framers carefully constructed a Supreme Court independent from the political branches of government:

To state the obvious, Americans do not trust the federal government, and that includes the Supreme Court. Americans believe politics played “too great a role” in the recent health care cases by a greater than two-to-one margin. Only thirty-seven percent of Americans express more than some confidence in the Supreme Court. Academics continue to debate how much politics actually influences the Court, but Americans are excessively skeptical. They do not know that almost half of the cases this Term were decided unanimously, and the Justices’ voting pattern split by the political party of the president to whom they owe their appointment in fewer than seven percent of cases. Why the mistrust? When the Court is front-page, above-the-fold news after the rare landmark decision or during infrequent U.S. Senate confirmation proceedings, political rhetoric from the President and Congress drowns out the Court. Public perceptions of the Court are shaped by politicians’ arguments “for” or “against” the ruling or the nominee, which usually fall along partisan lines and sometimes are based on misleading premises that ignore the Court’s special, nonpolitical responsibilities.

He concludes:

The health care law’s closely watched journey through the three branches of government concluded in the Supreme Court, a rare opportunity in the sun for the Court. What would have been a shining moment for the Constitution in a vacuum was instead validation of the Framers’ apprehensions. Our Constitution is the longest-lasting in the world because of Americans’ enduring reverence for it. But when elected officials exploit Americans’ patriotism to score political points, they jeopardize the Framers’ carefully constructed balance of power. Instead, honest public discourse on the Constitution and the Court is the surest security for our government.

Read the full article, Politicizing the Supreme Court by Eric Hamilton, at the Stanford Law Review Online.

5

Start the Countdown

I turned the Bingham biography into the publisher today.  While there will be more changes in the coming months, the clock is running for publication.  Thanks to all of you who read drafts or helped me along the way.  You’ll be properly acknowledged in the final product!

Now, back to watching the Olympics.

1

John Bingham and Thaddeus Stevens

I’ve put the Bingham biography though the first of what promises to be many revisions.  In thinking about the project from 30,000 feet , I think the most revisionist part of the book involves Thaddeus Stevens’ role in Reconstruction.

Stevens was (and still is) a lightning rod for that period.  To critics, he was a fanatic who wanted vengeance (in contrast to Lincoln’s conciliatory approach) and was willing to keep the South under military occupation for decades, if necessary, to achieve his aims.  To admirers, he was the most egalitarian Republican leader and the only one who understood that, without wealth redistribution and an extended federal presence, the South would revert to its racist ways and deny equality to the former slaves.  What everyone seems to agree on, though, is that he was the leader of the House Republicans and the most dominant figure on Capitol Hill until his death in 1868.

My research calls his power into question. It would be more accurate to say that he and Bingham were the two leaders of the House Republicans, and when they disagreed Bingham usually prevailed. This means that more of the credit and the blame for Reconstruction falls on Bingham’s shoulders, and the debate between Stevens and Bingham turns out to be far more complex than most think.

Blogging from me will be light or nonexistent in the next few weeks.  Other projects need attention.

8

James Wilson

One question I’ve been asked is whether I’ll write another biography and, if so, about whom.  I’m not sure, but I do have some ground rules that are helpful for anyone considering this kind of project.

1.  Never write about a living person.

This is true for several reasons.  First, it’s a story without an ending.  Second, the person can do a lot to control or influence the book. Third, other people are far less likely to tell you the truth about the subject.  Fourth, lots of relevant documents will be unavailable.

2.  Don’t write about someone who is famous only as a judge.

Judges are generally boring people, though there is the occasional exception who has a colorful personal life (Justice William O. Douglas). If a judge had an lively political or professional career before going to the bench (Earl Warren, for example), then that can work, but a book that just moves from one opinion to another is tough sledding.

3.  Find someone about whom no book has been written in decades

If you want to make money, writing another book about Lincoln or Washington is fine.  To make a scholarly contribution, though, you need to say something new.  That can be done about an old subject because new documents or new insights come with every generation. Thus, the fact that a book was written about X fifty years ago does not preclude writing another book now.

4.  They have to be important enough (or fascinating enough) to justify a couple of years of your working life.

My leading candidate–and I’m starting to think hard about this–is James Wilson. Wilson was born in Scotland and emigrated to the United States in the 1760s. He wrote one of the first sophisticated pamphlets challenging parliamentary supremacy over the colonies, signed the Declaration of Independence, was one of the most influential members of the Constitutional Convention, and served as one the first Supreme Court Justices.  He is largely unknown because he died on the run from creditors after making a series of bad investments in land.  The last full biography of him was written in the 1950s, so this might be a good time to do one.  Plus, there’s always room for another Founding Father book.

5

Louis Pollak (1922-2012)

From the federal courthouse comes the very sad news that Senior District Court Judge Louis Pollak has died.  Judge Pollak, a jurisprudential giant, mentor to many, and former dean of both Yale and Penn Law Schools, served on the bench from 1978 until his death.  He will be missed.

 

(Update: The Inquirer’s brief obituary is here, though obviously there is much more that could and will be said.)

1

Announcement for the Paul Murphy Prize

The American Society for Legal History announces the Paul Murphy Prize to support the completion of a book on the history of civil liberties that addresses any topic or any time in American history. The award will be given out two times only, in 2012 and 2013. Recipients will receive $5000 to support their work. Nominees at all levels of seniority will be considered, however the award is not for the completion of a dissertation.

The award honors Paul L. Murphy (1923-1997), who spent much of his career at the University of Minnesota where he rose to the rank of Regent’s Professor of History and American Studies. At the time of his death, he was in the second year of his term as president of the ASLH. During his tenure at Minnesota he became one of the nation’s leading constitutional historians and a mentor to generations of undergraduate and graduate students. Among his most important books were: The Meaning of Freedom of Speech: First Amendment Freedoms from Wilson to FDR (1972); World War I and the Origin of Civil Liberties in the United States (1979); Historic Background of the Bill of Rights, Vol. 1 (1990); and The Shaping of the First Amendment: 1791 to the Present (1991). In addition, civil liberties played a fundamental role in the argument he developed in what was likely his most influential book, The Constitution in Crisis Times 1918-1969 (The New American Nation Series, 1972). Murphy’s commitment to civil liberties and his passion for the subject was evident in his deeds as well as his words. He was an ardent and committed member of the American Civil Liberties Union throughout his life. For additional information on Murphy please see the tribute to him in the Law and History Review, 16 (Spring 1998), ix-xi.

To be considered for this award, authors or nominators should send a book proposal with chapter descriptions, a discussion of the book’s contributions, and a time-line for completion; a sample chapter; and a c.v. to committee chair Mary L. Dudziak (mdudziak@law.usc.edu). Submissions via e-mail are preferred, and attachments can be in Word or PDF. Please put “Murphy Prize” in the subject line. If you must submit by hardcopy, please send four copies of these materials to arrive by the deadline to this address: Professor Mary L. Dudziak, USC Gould School of Law, 699 Exposition Blvd, Los Angeles, CA 90089. The deadline for receipt of proposals for this year’s award is June 30, 2012.

Members of the Murphy Prize Committee are:
Mary L. Dudziak, Chair, University of Southern California
Robert Kaczorowski, Fordham University
Serena Mayeri, University of Pennsylvania
David M. Rabban, University of Texas

 

1

Some Words of Advice for Law Students, from 1811

As the year draws to a close, it might be worthwhile to review the following advice, provided to American law students (clerks, really) precisely two centuries ago.  These words of wisdom come from William Wright’s Advice on the Study of the Law, as published by Baltimore’s Edward J. Coale  with “additional notes for the American student” back in 1811.  (One can view the complete text here, on Google Books.)

  • The student should commence with a firm resolution to become one of the most eminent attornies [sic] of the age : and though the difficulties which he will at first meet with may be great, he should not despond; because despondency will produce negligence. Let him persevere, and he will succeed.
  • Genius is more equally distributed among mankind than is generally allowed. . . . If all men would accustom themselves to reflection, few would be ignorant; and their want of reflection proceeds from their own folly and love of leisure, and not from the insufficiency of their natural endowments.
  • Habits of attention and application, properly directed, produce what is commonly called genius.
  • The student should make himself most intimately acquainted with the practice which is likely to be the most useful.
  • Mankind will undoubtedly form their opinion of the morals and attainments of the young lawyer from those of his companions. . . . If he selects for his confidential friends the libertine, the dishonourable, the malevolent, the trifler, or the uneducated, among such he will himself be classed.
  • The companions of a student should be few; if they are numerous, he will probably be induced to sacrifice more time to friendship and pleasure than is consistent with his professional duties, and his hopes of honourable distinction.
  • Politeness, says Lord Chatham, is benevolence in trifles. This then is all I require of the student.
  • Young men should carefully guard themselves against forming any attachment, even upon honourable principles, till years shall have matured their judgment, and a proper course of study supplied them with knowledge sufficient to enter on the world and to transact their professional business with accuracy. Attachments formed too early in life are commonly of a romantic nature, and tend to dissipate thought and unhinge the mind, and seldom terminate so happily as lively imaginations are willing to expect.
  • An attorney should commence his professional labours with the laudable resolution of preventing litigation, as much as possible; for petty suits are always vexatious, and seldom productive of advantage either to the litigant parties or to society.
  • When consulted professionally, a young attorney should not, if he can avoid it, give his opinion hastily; but consider and re-consider.