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1962 Legal – Unhappy Hybrid William F. Swindler William & Mary Law School

Repository Citation Swindler, William F., "Legal History – Unhappy Hybrid" (1962). Faculty Publications. 1612. https://scholarship.law.wm.edu/facpubs/1612

Copyright c 1962 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/facpubs Legal History-Unhappy Hybrid

by WILLIAM F. SWINDLER, Professorof Legal History, Marshall-Wythe School of Law, College of William and Mary

The title which I have given to this in many constitutional propositions paper applies actually to the second of which made out the case for independ- the three parts in which I propose to ence and provided the framework for discuss the subject. In the first part, a new republic. Finally, on December I should like to review for you some 4, 1779 at the College of William and of the significant elements of legal his- Mary, the first chair of law and "po- tory which have accounted for the lice" (i.e., government or public af- growing scholarly interest in it in re- fairs) was created. cent years. Then, in the second part I do not recite these facts merely -at the risk of stepping on some toes from a sense of pride. On the con- -I feel it necessary to point out some trary, may I add this observation: of the professional conflicts and am- Since the restoration of Colonial Wil- bitions which have impeded progress liamsburg in the second quarter of in the study of this fascinating sub- this century-and with an attendant ject. After that, I shall try to con- revival throughout the scholarly world clude on a positive note with some of articulate advocacy of Virginia's suggestions for facilitating research in contribution to our history-there has legal history. been some danger that we may appear to be trying merely to outshout the I claims of our sister colonies. On the We are meeting, as you are well other hand, this fact is now generally aware, in the area which was literally conceded: In the nineteenth century the birthplace of some of the funda- while the South was caught in a cul- mental legal institutions on which the tural lag aggravated first by the In- American way of life has been built. dustrial Revolution and then by the Six miles from us, at Jamestown, was Civil War and Reconstruction, Amer- the first permanent settlement in ican historiography was beginning to America to be established within the acquire some of the features of a ma- framework of English legal and po- ture discipline-and it was acquiring litical concepts. There, in 1619, con- these with an almost exclusively New vened the first representative legisla- England orientation. As a conse- tive assembly in the New World-an quence, until the growth of substan- assembly which for all practical pur- tial historical research in the South poses has continued to the present. In in the past generation, there has been Williamsburg itself, in the eighteenth a vast void between 1492 and 1621 in century, came that flowering of po- the average American's idea of his litical genius which then bore fruit own history. UNHAPPY HYBRID

But in the development of twen- colonials at the Inns of upon tieth-century research which has colonial -what were sought to establish a balance of his- the political and social circumstances torical fact, there has been a tendency under which legal institutions in the for the pendulum to swing to the United States were made independent opposite extreme. Thus, when the of England? Chief of the United States sev- With these representative ques- eral years ago used rather loose rhet- tions, some of the most obvious op- oric to picture the Mayflower bring- portunities for research in legal his- ing the to the New tory may be identified. How vast and World, a chain reaction began in Vir- unworked the field really is may be ginia which ended with the fixing of dramatized by this passage from the a tablet to the wall of the old James- excellent Studies in the History of town church asserting that the com- American Law, by Professor Richard mon law came here first. An older, Morris of Columbia University: and perhaps better known, debate has been carried on (and still continues) The investigator of early American law . . . has to plot his own course vir- concerning the claims of William and tually unaided. No general treatise deals at any length with the seventeenth and Mary in Virginia and the Litchfield eighteenth centuries of American law. School in Connecticut to be America's The absence of abridgements of the re- ported cases makes the principal source first in the professional study of law. material more inaccessible than the Year These are all, really, beside the Books. The law reports contain material as rich in significance for early American point. It is a matter of documentary law as are the publications of the Selden , for example, that William for English legal history, and suf- ficient reasons exist for publishing at and Mary's chair of law was created least important selections from this abun- by the Board of Visitors on December dant material on a scale commensurate with the notable work of the society of 4, 1779, while the Litchfield School English scholars.1 under Tapping Reeve generally dates its distinguished career from 1784. To this statement of Professor Morris, But these dates are really significant one might add the observation that only in demonstrating that, if neither with the publication of such work as William and Mary nor Litchfield had is being done in this area, the need done anything about legal , and demand for much more of the some other agency would have, at same becomes more evident. Thus the about that time. The real grist for the volumes in the American Legal Rec- legal history mill is, rather: What was ords series published by the Littleton- the nature of academic preparation Griswold Fund of the American His- for the in the beginning of the torical Society only tantalize the new nation-at both of these schools? scholarly appetite-there is so very What had been the nature of prepara- much more at hand to be explored tion for the in the pre- and made available. Here in Virginia, Revolutionary period-what was the I Morris, Studies in the History of Amer- degree of influence of the study by ican Law (Philadelphia, 2d ed. 1958), 259. JOURNAL Vol. 55

the gigantic project known as the past eighteen months: Our first full- Colonial Records Survey is bringing scale monographic study of the essays to us from England and the Continent by Professor Gottfried Dietze of the a treasure-trove of documentary mate- Johns Hopkins University; an excel- rials on every conceivable facet of lent annotated edition of The Feder- social, economic, political-and legal alist by Dr. Jacob Cooke of Colum- -history, at which the scholar stares bia; and another edition with intro- with the ravening attitude of a starv- ductory commentary by Professor ing man in sight of a banquet. Benjamin F. Wright of the University To demonstrate further the propo- of Texas. Yet the activity in this area of sition that, the better the work which suggests at least is done in this subject, the more in- three correlative studies which de- sistent the need for further work: mand attention before the extended some months ago Professor George work on The Federalist may be said Haskins of the University of Pennsyl- to have made its most complete con- vania published his superlative study tribution. There is, first of all, the entitled, Law and Authority in Early rather obvious need to delineate the Massachusetts, covering the period anti-Federalist position-which, far from 1630 to 1650 in what we all hope from being rejected by implication is the first of several other works by with the ratification of the Constitu- the author. But immediately it be- tion, almost immediately found vin- comes more evident that we are long, dication in the ratification of the Bill long overdue for a study which will of . Secondly, in spite of all the cover the same fundamental problems substantial work which has been done as applied to the colony at Jamestown. on the essays by Hamilton, Jay and This is not by any means a demand Madison, we have yet to analyze their for a proliferation of work in one papers in terms of American constitu- strictly circumscribed segment of co- tional theory and practice. Finally, lonial legal history, but rather an em- and most importantly of all, there is phasizing of the fact that, in the ex- the need for a truly exhaustive study ploration of the legal beginnings of of the origins of constitutionalism in society in these two particular col- the American colonies, in the states onies, with such distinct social and during the Revolution, and in the economic influences at work upon growing state structure in the years them, we shall have laid an excellent after 1787. foundation for the more general study There are other important projects of legal history throughout the entire in active operation in the field of legal colonial period. history, which are providing invalu- Take as another example the con- able documentary facilities for future tinuing interest in the constitutional research. Among these may be men- propositions set out in The Federalist tioned the Documentary History of papers-an interest which has resulted the Ratification of the in three independent projects in the and the Bill of Rights, sponsored by UNHAPPY HYBRID the National Historical Publications In something of an aside, I might Commission and going forward under observe that it is particularly fitting the editorship of Dr. Robert E. Cush- when the papers of such significant man, the distinguished constitutional figures are edited under the sponsor- authority who was so long identified ship of the college or university with with Cornell University. which they were identified. Thus, Then there is the multi-volume his- Dartmouth College, which owes some- tory of the Supreme Court of the to Daniel Webster, is under- United States, being financed by the taking the project involving the pa- Oliver Wendell Holmes Devise of the pers of that statesman. Similarly, we Library of Congress and being edited have been working at William and by a team of scholars under the gen- Mary for several years to clear the eral direction of Professor Paul Freund way for a project on the papers of of Harvard University. If this is truly John Marshall-one of the chief na- a history of the court itself-rather tional figures on the list which the than a specialized discussion of con- National Historical Publications Com- stitutional law as Charles Warren's mission urges be considered for com- pioneer work on this subject proved prehensive editorial treatment. I shall to be-it will be an extremely valu- refer to the Marshall project in more able addition to the bookshelf of detail when I come to the second part legal history. of this paper. Perhaps most important of all as a There are, of course, innumerable stimulus to scholarship in this field regional studies demanding early at- are the growing number of projects tention in the broad field of legal his- on the collected papers of a number tory. Professor W. W. Blume of the of important public men. The model University of Michigan a number of for all such work, of course, is the years ago demonstrated the important Papers of Thomas Jefferson under the source materials to be searched out, editorship of Dr. Julian P. Boyd of and the significant facts to be gath- Princeton University. Among similar ered therefrom, in reference to the projects now under way, which have evolution of territorial law on the a special meaning for the legal his- frontier. It is a reproach to legal torian, are the James Madison papers, scholarship that his pioneering lead jointly sponsored by the University of has not been followed. How much we Virginia and the University of Chi- still need to know about the develop- cago; the Adams family papers spon- ment of the system in Loui- sored by the Massachusetts Historical siana, and the processes of its transi- Society; the papers of Alexander tion under the influence of the Hamilton and of John Jay, both be- Americanized form of the common ing edited at Columbia University; lawl How much is to be found out the papers of Henry Clay at the Uni- concerning the Spanish legal influence versity of Kentucky; and the papers in the American Southwest, about the of John Calhoun at South Carolina. heterogeneous influences upon Cali- LAW LIBRARY JOURNAL Vol. 55 fornia legal institutions, about min- At the present day, more and more new eral law subjects are establishing their claims to as it has affected the whole study, while at the same time the dis- law of real in the Western parate and disjointed rules of modern states law require little background in basic traditional principles . . . . Ulti- But there is more-far more-to mately the law of today will take its place as the stuff of legal history, just stimulate the scholar confronting this as the broader analysis of its rules will subject. Professor Willard Hurst of form the subject-matter of jurisprudence. By that time, however, there will be few the University of Wisconsin, one of legal to deal with it.3 the most dynamic and original think- May I suggest ers on legal history, recently pointed that the objectives listed as priorities by Professor Hurst out four major needs for large scale sufficiently dispose of the dilemma research, which may be paraphased suggested as follows: in the latter part of Pro- fessor Kiralfy's statement. Multiplicity 1. The significant developments in the evolution of our law reflected in the of contemporary legal subjects is un- legislative, and administrative questionably a problem of today's law processes-particularly in the twentieth century. Correlatively, the contributions school, but it must not be allowed to of the organized bar to the legal evolu- prolong the frustration with which tion, and the social effect of laymen's at- titudes toward law and . the study of legal history has long 2. The general study of the interplay of been met in the law school. As for legal and economic trends. 3. The broad effects upon law of ele- , it has already proliferated mental social forces in American life dur- to a degree that requires its study ing its periods of major adjustment, e.g., in the Jacksonian period, during now as the stuff of legal history. The and after the Civil War, and in the effects of the executive and admin- Great Depression of the 1930's. 4. Correlative with the last two-and istrative processes have been manifest to use Professor Hurst's own felicitous for a much longer period than even phraseology-"legal history should treat as critical themes the impact of social the seems to realize. In short, inertia and social drift." The impact of legal history is not an excursion in empirical-or worse, irrational-legisla- tion upon significant social problems antiquarianism by any means-refer, created some remarkable legal proposi- for example, to the extremely stimu- tions with which teacher, practitioner and jurist have had to deal.2 lating new book by Professor Karl N. Llewellyn of the University of Chi- The foregoing examples will suffice cago, on The Common Law Tradi- to demonstrate that the fields are in- tion: Deciding Appeals. The legal his- white for the harvest, but the torian, like the general , has workers are few. The signs of growing something of incalculable practical activity in legal history should be a value to tell the whole of the legal matter of encouragement, although profession, if it will but give him the for some, like the English scholar A. opportunity to gather and study his K. R. Kiralfy, there is now more than material. ever ground for despair. He says: A few of the problems which stand 2 Hurst, The Law in United States His- tory, 104 Proceedings of the American Philo- 3 A. K. R. Kiralfy, English Legal History sophical Society, 523-4 (1960). (London 1957) V. UNHAPPY HYBRID in the way of legal history will be dis- offering a legal history course that we cussed in the second section of this can properly focus upon the need for paper. supporting research rather than start- ing with a missionary effort to get the II subject recognized. A cursory exam- ination of law school catalogs indi- There are apparently three major cates that probably 25 per cent of frustrations which bedevil the pursuit them list a course in legal history. But of legal history. These are discussed it is another question when one seeks in more detail below, but may be sum- to learn from the catalog (if one ever marized here as follows: learns anything from a catalog) 1. Administrative apathy, either at whether a specialist in the subject has the top institutional level, or at the been developed on the faculty, law school level, or both. whether the course is complemented 2. Professional jealousies, particu- with an appropriate research pro- larly virulent between the gram, and whether-something which and the historians, but only slightly should be of particular interest to this less pronounced between these two meeting-a definite portion of the groups and the political scientists. law library acquisitions program is 3. Confusion of concepts as to the earmarked for legal history materials, definition, objectives and functions primary as well as secondary. of legal history. In the third part of this paper, I Turning to the first of these prob- shall try to demonstrate how legal his- lems-administrative apathy-it will tory is a subject which is particularly be discerned in two forms. There are apt for use in the small law school or the cases where the subject is ignored the regional law school as well as for altogether; it has never been offered, the major school offering an exhaus- or has died of neglect, or has been tive curriculum and research program. dropped in favor of some new spe- But before reaching that point we cialty. This form of the problem prob- must recognize fully the problem here ably can be dealt with only when the under consideration; perhaps it can second form has been resolved. In best be stated by quoting-from a the second form, the course is offered, leading law teacher who has been as- but no supporting program of re- sured that he will be anonymous-his search in this area has been developed concept of the problem: prospect. The course is simply or is in The missionary role I see for legal his- an elective-and an elective in that torians is to campaign to introduce some is dimension of time into the thinking and category of optional courses which interests of their able young colleagues only taken in the last desperate effort working in corporations, taxation, trade to fill out the required number of and other staples of the cur- riculum. We teach the law we teach in hours. our schools today in a shamefully shal- low time perspective, and too little that Now-this is the real crux of the has been done in legal history concerns problem. There are enough scholars the development of substantive public pol- LAW LIBRARY JOURNAL Vol. 55

icy, too much time has been fastened on [A professional historian interviewed by the inner housekeeping of the . the reporter] proceeded to divide Amer- There is little in the output of legal his- ican historians into three groups. First, tory publication to enlist recruits to the there is the "in," or "white-haired," or field; if most of the product is second or "shoe" group, which can be defined as third rate, it is not surprising that first- comprising the men who attend the rate men are not stirred to think that smokers given by such pubishers as the they might find fulfillment themselves in Columbia University Press, the Univer- pursuing their interests in time dimen- sity of Chicago Press, Macmillan, and sion. Knopf, and who feel at home at them. . . . This top group consists of possibly This sentiment has been rather strik- two hundred men .... The second group, which embraces the overwhelming ma- ingly echoed by the independent ob- jority of American historians, consists of servations of several other excellent teachers who for some reason eminent just aren't eligible for the 'in' group. law teachers; the tenor of their ob- Maybe they didn't attend the right uni- servations versities, or maybe they lacked the proper is (1) that the problem of sponsorship, or maybe they haven't pub- legal history is an extension of or con- lished enough. The third group is made sequence of the generally limited, up of historians who have acquired rank by the simple attrition of their col- pragmatic concept of the teaching of leagues, of people who staff teachers' col- law subjects as a whole; and (2) that leges, and of men who have trouble get- ting and keeping jobs .... At annual legal history itself is handled by men meetings of the A. H. A., members of the who do not really believe that "the "in" group give most of the speeches, while the "out" groups sit and listen. future may learn from the past", (co- Members of the "in" group who don't lonial Williamsburg's hopeful phrase) happen to be giving speeches rarely bother to listen to their colleagues; they or that Santayana was right in de- prefer to stand around and talk and claring that we must repeat history if carry on their secret bargaining. . . A we ignore it. If this sounds familiar, it is perhaps As for the second of these problems because it could almost as well be a -and I am giving them in an ascend- description of the annual conventions ing order of magnitude-it is serious of the Association of American Law enough to have brought progress in Schools. At both meetings, there is legal history virtually to a standstill. the characteristic group of young fac- Although the American Historical ulty members described by the New Association has for a number of years Yorker as either vainly trying to get had a special program in legal history, the attention of a prospective em- in which some lawyers and historians ployer-and here it may be said cate- have been able to work together, it gorically that no one can equal a law does not take much to disrupt the un- school in the art of what I term easy truce between the professions. the unenthusiastic handshake-or as In part this is due to a crystallized being convoyed by some former fac- -consciousness which plagues ulty adviser who makes the strategic both groups. You perhaps remember introductions for him. the ironic commentary on the 1960 Related to this is the problem of a convention of the American Historical mystery cult which has been devel- Association which appeared in the oped around both disciplines-i.e., New Yorker: 4 New Yorker, January 14, 1961. UNHAPPY HYBRID only the elect (as defined by those al- (2) Alternatively, we may seek a col- ready "in") are qualified to deal with laboration of a lawyer and a profes- the specialized subject matter upon sional historian. Unfortunately, this which legal history depends. Professor has some fundamental ideological as Haskins, in the introduction to his well as practical disadvantages; and book mentioned earlier, describes the to date, at least, there has been no problem thus: conspicuous example of a lion and a Unfortunately, the domain of the law lamb in these areas lying down to- is terrain upon which the historian with- gether. out formal has been re- luctant to intrude. One reason for this A moment ago I mentioned the in- reluctance has been the traditional isola- terest of the College of William and tion of the law from other disciplines as a result of the professionalization of legal Mary in undertaking a comprehen- study in this country. Moreover, the com- sive editorial project on the papers of plexities of legal doctrine and the in- tricacies of legal procedure have under- Chief Justice John Marshall. Some of standably tended to deter those without our experiences in clearing the way professional legal training from inves- tigating the sources and operation of law for such a project illustrate the fun- even in a past . Yet, because damental clashes of interest which law is a social product, reflecting not only social organization but the incidence develop. First of all there is the ques- of political and economic pressures, the tion, is such a project primarily with- discovery of its past particularly requires the techniques and insights of the social in the area of legal history with the scientist. Unhappily, as Professor Mark emphasis on the term "legal"--or is Howe has said, "lawyers consider the his- torians incompetent and irresponsible, the project essentially historical with and the historians consider the lawyers only an incidental "legal" pertinence? unimaginative and narrow." If the his- tory of American law is to be written, By what objective standards is such a this mutual distrust must be dispelled, question to be settled? Let me dispose and the outlooks of both disciplines com- bined.5 of this last question by simply ad- vising that, if there are objective There the matter stands at the mo- standards which could be applied, ment. One or both of two procedures they have not yet been resorted to. obviously need to be followed: (1) Let me further add the off-the-record We may encourage the training of a comment of one individual who very small group of specialists in both sought to aid in the implementing of disciplines-e.g., a law school grad- the project; he declared that of all uate with advanced work in history the scholarly editorial projects under and related social sciences. This, how- way or in prospect, those I men- ever, breeds its own problem-the tioned a while ago-the Marshall Pa- scholar who is not accepted by either pers-presented "the damnedest con- group because he is tainted with the fusion" in his experience. characteristic of the opposition. From Why this confusion? First of all, this comes the description of legal his- note that Marshall is the only one of tory which is the title of this paper. the several public figures whose pa- pers are currently being gathered, G Haskins, Law and Authority in Early Massachusetts (New York, 1959), ix. who is primarily a legal figure. Ham- LAW LIBRARY JOURNAL Vol. 55 ilton comes closest to Marshall as be- organized bar in disclaiming any pro- ing identified with the law; but Ham- fessional responsibility for the compre- ilton, Jefferson, Clay and Calhoun are hensive study of a giant in the law, is essentially and properly described as damning confirmation of the conten- political leaders. John Jay may also tion that the law is oblivious to its fall into the category with Marshall, own cultural heritage. On the other but his career is not so exclusively hand, the "closed shop" attitude of bound up with the law. The point is, the professional historians hardly en- that from the outset of a proposed courages the hope that collaboration project on John Marshall, the natural between specialists on both sides can tendency is to consider the possibility be attained in the near future. of support for the project from the Finally, as to the third-and per- . haps greatest-problem bedeviling I shall not take you through all the legal history at the present: The con- labyrinthine avenues which we had fusion of concepts. I submit that this to follow in the course of bringing the problem is manifested in two inde- Marshall idea at least to a position pendent forms: where it could seriously be considered by this institution. Suffice it to report 1. There is the running dispute between the historians (in law) and that the first serious setback to the (in law). I pre- project developed when the American the comparativists fer to describe this as the conflict bar through its national agency de- between the "horizontal" and the clined to be identified with it. There "vertical" approach to the subject were several good and sufficient rea- sons why the bar could not sponsor -and I shall explain what I mean the project at the time; but the real by this in a moment. damage was done by the bar's state- 2. Then there is the failure of re- ment that it was not interested in conciliation of two other viewpoints legal history as such, but was com- of legal history: One of these I shall mitted to a research program essen- term the view of legal history ge- tially ad hoc and pragmatic and con- nerically; the other, the view of temporary. legal history as the synoptic frame Now, this illustrates precisely the of reference for a contemporary apathy toward legal history as a sig- subject. nificant element in professional legal training and practice to which I re- Before dealing with these two ferred a moment ago. Coming from forms of the problem, let us illustrate the practitioner rather than from the the problem as a whole by consider- law schools, it suggests a major reason ing some of the definitions of legal why the law schools generally have history by which the organized efforts the attitude that they do. in the field are being influenced. In I submit that this is a tragic establishing the American Journal of development. The attitude of the Legal History several years ago, Pro- UNHAPPY HYBRID

Surrency of Temple Uni- Most of the business of the bar through Lessor Erwin the nineteenth century had to do with versity described it in these terms: the property and affairs of cli- ents, and most of the law of these fields history is the study of the de- First, legal was common (that is, -made) law, legal doctrines through velopment of so that through the formative period of , court decisions, and the opin- our main legal tradition the focus re- ions of any body considered mained on the judicial process. * * * relation to social, political and eco- in This bias of professional thinking was nomic history. the fact that through the the his- not affected by Second, legal history embraces nineteenth century Congress and the state tory and development of people and in- large quantities law churned out stitutions such as courts, legislatures, of important legislation, or by the fact enforcement agencies, etc. that in great areas of policy which did Third, legal history should embrace the law of the contribution of not lend themselves easily to common evaluation the framework of the law to the development of law. Included in development be biographical material, on was erected mainly in statutes (as in the this would law of the public lands, public educa- the lives of judges and lawyers empha- health sizing their professional accomplishments. tion, public utilities, highways, and sanitation, or the organizaton of Fourth, legal history needs bibliograph- as to articles and books local government). From limited begin- ical information nings in the late nineteenth century, on its subjects. executive and -making This is obviously a basic definition. grew to great proportions alongside the statute law. Judicial law-making was It suggests certain fairly orthodox never as exclusively important as the con- avenues of approach to a subject centration of legal writing might seem to show. From the 1870's on, legislative, which obviously has been so com- executive, and administrative processes pletely unexplored that a number of definitely became the principal sources of formed policy. The course offerings other avenues need also to be devel- of even the better law schools were slow oped. While it does not necessarily to reflect this reality. But legal research was even slower, with legal historians suggest a conflict of ideas, I should badly lagging the field. like to have your while I quote somewhat at length from a pa- The bulk of legal history writing has per by Professor Hurst, to which I been about topics defined by legal cate- gories. We have much writing about com- have already referred; I recommend merce clause doctrine, but little about the it in its entirety to you, as it appears meaning of commerce clause doctrine for the development of operation of sec- in the October 17, 1960 issue of the tional or nationwide marketing organ- Proceedings of the American Philo- ization or about the impress which such business history may have made on con- sophical Society. stitutional principles. There is some Four limitations of the general product rather formal history of , attest the want of philosophy in the but little history of the significance of study of North American legal history. fee simple title for types of land use, for (1) Historians have exaggerated the work the private and social accounting of in- of courts and legal activity immediately come and costs of alternative land uses, related to litigation. (2) They have paid or for the political and social balance too little attention to the social func- of power. There are some essays on the tions of law. (3) They have not dis- history of contract law, but little or no tributed their effort with adequate re- effort to define or appraise the meaning sponse to the facts of timing and the that contract law had for the function- reality of major discontinuities in the ing of the market, the provision of credit, country's growth in relation to the uses or the allocation of gains and costs of of law. (4) They have exaggerated areas business venture. There are scattered of conscious conflict and deliberated ac- writings about the history of the mort- tion, at the expense of realistic account gage, the corporate indenture, the receiv- of the weight of social inertia and the ership and , but we lack the good momentum of social drift. studies we should have of the historic LAW LIBRARY JOURNAL Vol. 55

relations of law to the growth and chan- tory, suggested by the foregoing quo- neling of investment capital. There is a good deal in print about various aspects tations and by the two forms of the of the Bill of Rights, but no connected problem I mentioned before that. story of the implications of civil rights doctrines for the shifting balance of First, as to the confusion between power among various kinds of groups the "vertical" school, as I have called and between the individual and and private group power at different it, and the "horizontal" school or stages of the country's growth. Though comparative lawyers. By "vertical" I better than a generation has gone by since we heard the call for a sociological mean a chronological historical ap- jurisprudence, legal history writing has proach-from the origins of a legal made little response, but continues con- tent on the whole to let the formal head- proposition or institution to its ul- ings of the law fix its subject matter. timate effects. An example would be 0 * * * * any given rule of contract or prop- In the total distribution of effort, there has been a disproportionate attention in erty law traced back to the earliest legal history writing to beginnings-and records and forward to its current ap- to beginnings in their most obvious sense-at the expense of proper develop- plication. The comparative approach, ment of hypotheses concerning the main of course, is essentially contemporary lines of growth through to our own time. Much attention has focused on colonial -the study of the same rule, let us origins, on the period of constitutional say, under different modern jurisdic- experiment from 1776 to 1790, and on the successive frontier phases of national tions. Ideally, of course, but probably expansion. I do not quarrel with the only theoretically, there should be a worth of attending to such formative "vertical" approach periods taken in themselves, but only which is also with the tendency to fasten onto origins "horizontal" at every chronological without equal curiosity to follow through, and with failure to see that in terms of level. Until that nimble bit of research law's relation to gathering issues of power can be accomplished, however, we and social function there were other less obvious periods of beginnings which shall simply have to concede an equal should also be studied. First, as an ex- degree of validity to both schools. ample of the want of follow through, it is odd that for so many states we have This does not really solve the prob- writing which with care sometimes verg- lem, of course-it simply evades an ing on antiquarian enthusiasm traces the beginnings of territorial and state courts answer. (once again, the excessive preoccupation The other form of the problem- with judicial process), but little good writing on such basic themes as law's that which I have called the generic relation to the creation of transportation vs. the synoptic view-brings us back networks, the law's response to the busi- ness cycle, or the relation of tax policy to again to the characteristically prag- the fortunes of agriculture and other matic and usually short-sighted atti- extractive industries. tude of many practitioners and all too 0 * * * * Second, on the neglect of the less ob- many law schools. This is the attitude vious beginnings, the most notable ex- that legal history derives its primary amples are the relative inattention to the sharp changes in direction and pace of validity as the documentary back- social movement which came about in ground to a current problem of law; the 1830's, the 1870's, and the 1930's.6 that legal history is the legal history Now as to the two major forms of of something, some element in a sub- the problem of definition of legal his- ject in litigation. From there it is but 6 loc. cit. n. 2, supra, at 521 et seq. a step to the assumption that all legal UNHAPPY HYBRID history is either of practical use in an this field, to provide him with re- ad hoc situation, or is insufferably search opportunities and to include pedantic. This is what I call the syn- his primary source materials among optic view; I am not sure that the the basic collections of the library. dictionary agrees with this definition The first practical opportunity of "synoptic"-but so much the worse which seems apparent is for the devel- for the dictionary, this may be offered opment of first-rate regional studies. as an original contribution to knowl- This is what I had in mind when I edge. suggested a few moments ago that the The generic view of legal history, I small law school and the regional law submit, while it does not solve the school might well develop legal his- problem of the vertical and horizontal tory as an important element in its schools I have described since it ap- curriculum. With such an enormous plies to either of them, rather deals range of subjects to be investigated, with legal history as legal history there can hardly be conceived to be rather than as the legal history of any law school which does not have something. In case we lost each other rather abundant source material at on that last sentence, this view of hand for a study in depth of some legal history accommodates the proj- specific topic in legal history. The ect which deals with isolated partic- local application of a given rule of ulars as well as with synthesizing law-and, more significantly, the lo- studies. It is sympathetic to the ap- cal factors which gave the peculiar proach which deals exhaustively with local coloring to the rule-is an ob- the subject within the definition set vious type of project within the def- by the researcher. It is ultimately inition of regional studies. pragmatic, but not in the sense of the Secondly, there are studies auxil- synoptic idea I described above. But iary to the specialties of a given law until it gains ascendancy, the pursuit school. For example, since an advance of legal history will continue to breed program in law and taxation is of- unhappy hybrids fered at William and Mary, it is rather obvious that a number of subjects in III the history of law and in Having briefly reviewed some of the taxation policy and context would be opportunities, and rather tortuously in order. Here, again, regional studies reviewed some of the problems, let me are in order, although the specialty now quickly conclude this paper with itself may be confined to the larger my few suggestions for advancing the law schools. cause of legal history. It goes without In the more distant future is a third saying, I trust, that the necessary pre- possibility, of coordinated projects requisite for any advance is a dem- (there are sad connotations to the onstrated willingness of law schools word "cooperative") -e.g., the study and their affiliated institutions to en- of the same subject by different schol- courage the work of the specialist in ars under different . This LAW LIBRARY JOURNAL Vol. 5 awaits the day when legal history has of Columbia has said, we urgently become sufficiently developed as a need to uncover our original source discipline to stimulate a uniform or materials-but as Hurst of Wisconsin centralized national program. That points out, we need equally urgently day, it must be admitted, is some dis- to devote our attention to the historic tance in the future-indeed, the development of the law in its com- burning question before the legal plete social, economic and political profession at the moment is whether context. American legal history has the time has yet arrived for collective twice as challenging a task, as a result. efforts through national organization. It should be evident from what has Both the promising Journal inaugu- been said in this paper that the bibli- rated by Temple University and the ographic problems of promoting re- Society organized to bring together search in legal history are among the those interested in legal history, are most demanding in the law library groping for a definition of their field. More than for any other subject proper functions. The fact that an in law, legal history requires for its early legal history society died almost proper pursuit access to the whole a-borning is less an indication of lack field of material as well of interest in legal history than evi- as basic documents in law itself. It is dence of the lack of adequate stand- said that when one of our leading au- ards of achievement, based upon thorities in legislation was asked, a enough published research of high few years ago, to draft an exhaustive significance, to persuade the best bibliography on the subject of con- minds in this subject that something temporary state constitutional prob- more can be accomplished in concert. lems, he responded with more than The quality of the work of the Sel- 25,000 references. den Society in England, and of in- dividual English scholars like Mait- Legal history can only be studied land and Holdsworth and Plucknett, with ready access to the source mate- indicates the level at which American rials of the general historian, the com- research must operate. But this does plete range of government publica- not necessarily mean that legal his- tions, the personal papers and works tory research on this side of the At- of leading individuals of the period lantic must restrict itself to the early under study, plus a sympathy from documentary materials and their in- the researcher's institution which terpretation, which has been the high guarantees time to work in these rich achievement of the Selden Society. materials. When that day arrives, legal Rather, the opportunity for American history will change from an unhappy legal history-and the responsibility hybrid to a hardy independent branch -is considerably greater: As Morris of legal learning.