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September 30, 2013 Articles

Book Review: Law in American History: Volume 1

A masterful account of the development of our country's law.

By Dennis Owens

G. Edward White
Law in American History Volume 1: From the Colonial Years Through the Civil War
Oxford University Press

Ted White teaches law at the University of Virginia. When the American Law Institute recently celebrated its 90th anniversary, it invited Professor White to make the principal speech. He is the premier American legal historian working today. His books have been the best on the subject again and again. And what subjects: Oliver W. Holmes Jr., Earl Warren, John Marshall, tort law, Alger Hiss, and the history of baseball. He is a very capable writer and an astute researcher. When this volume arrived, we set aside the half-dozen books we were then reading (and a couple of essays we were writing), so that we could straight away dive into Professor White’s latest work. We knew that we would enjoy and be edified by the process. We were not disappointed.

Legal histories of the United States have been published before, of course. We reviewed Lawrence M. Friedman’s A History of American Law, which has gone through several editions. Also popular was The Magic Mirror: Law in American History by the late Kermit Hall and Peter Karsten. Nearly every niche of the law has had its own history. Those studies include such titles as Railroads & American Law by James W. Ely, Jr., a particularly fine effort.

This new history is the first of three projected volumes. It is a highly readable and comprehensive narrative history of the role that law has played in America. This volume ranges from the earliest European settlements to the end of the Civil War. It is not an encyclopedia; there is no need to include every topic for the sake of completeness.

This is no mere catalogue of important Supreme Court decisions and their impact (although they are included, often presented with unexpected freshness). Professor White deals with anthropology and ethnography as well as political and economic developments. Best of all, he adroitly handles the realm of American ideas and their interplay with the growth of the law.

The reader will learn a great deal about farm householding, the Anglo-American notions of sovereignty and imperial governance, railroads and the telegraph, how western expansion influenced the law and was influenced by it, too, and the surprising role the law played in the slaveholders’ tragic and bloody attempt to end the Union itself. (We disagree with the professor on his notion that the Union was dissolved by secession. As Lincoln insisted, the Union is perpetual. The so-called Confederate territory was always “our soil”; that is, it always remained part of the indissolvable Union.) A surprising aspect of this history is a fine treatment of legal problems of the Confederacy (principally conscription). This is surprising because there was never any national supreme court in the C.S.A., only trial courts!

Friedman advanced the notion (in 1973) that American law is “a mirror of society.” This idea has been widely accepted by historians of the law. Professor White argues that this idea can be misleading. He views the interplay between the law and society, culture, and the nation to be much more complex. Many decisions of the courts are indeed just the product of legal reasoning and are not popular. They reflect the process of the law and not merely outcomes approved by society. The judges’ personal motives are not necessarily predominant. And if they were, how would we know what those motives were, other than sheer guessing?

Professor White makes a convincing presentation about the role of property law in the colonial period. That law shifted markedly from its English roots. In Britain, land was scarce and the main source of wealth. In America, land seemed limitless. Homesteading and the recording of land titles replaced the maintaining of family fortunes in large estates. When the crown attempted to close the frontier in the trans-Appalachian (the Proclamation of 1763), the revolutionary idea found life. A curtailment of property rights was a destruction of the avenues of hope for a better life, for freedom, for autonomy.

Likewise we do not accept the author’s view that “most Americans of the founding period did not believe that all humans were created equal.” Indeed, the Declaration of Independence seems to be the only such endorsement announced in that era. Of course, the Constitution was not a vehicle for such philosophical proclamations. But uniquely, the Declaration was. Furthermore, the original meaning was political equality. Kings are not only superior by some divine right. It was only later, after Marx, that the aspirations for economic and social equality arose. We believe that the founders did advocate that the government recognize political equality. All men were created equal as citizens. They are then free to change that equality in other realms by improving their economic and social position by hard work and virtuous living.

If you have never read a history of American law, this magisterial volume is the one you should read now. If you have read other such histories, you will find that a perusal of White’s fascinating book is more than worth your while. The author’s wide and deep grasp of American history shows throughout his engaging narrative. Best of all, Professor White takes the time to pause and profoundly consider key issues, crucial trends, and important ideas. He deals with them with original insights and a superb sense of history.

Here is legal history at its best: fresh, accessible, authoritative, lively, thoughtful, sweeping, free of ideology and cant, elegantly written, crisply paced, commonsensical, and enlightening. We look forward avidly to the next two volumes, which we expect will be just as masterful.


Keywords: litigation, appellate practice, forms, local rules, federal rules, circuit rules

Dennis Owens practices appellate law in Kansas City, Missouri.

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