The Original Law Journals

THE ORIGINAL LAW JOURNALS Ross E. Davies, George Mason University School of Law Green Bag 2d, Vol. 12, No. 2, pp. 187-217, Winter 2009 George Mason University Law and Economics Research Paper Series 09-15 This paper can be downloaded without charge from the Social Science Research Network at http://ssrn.com/abstract_id=1351928 FROM THE BAG The JOURNAL OF LAW, addressing itself to THE PEOPLE OF THE UNITED STATES, will be principally devoted to the exposition, in popular language, of the philosophy, history, and actual state of law and government . Its aim will be to afford instruction without tediousness, and amusement without frivolity. The Journal of Law 1 Journal of Law 31 (1830) THE ORIGINAL LAW JOURNALS Ross E. Davies† OMMERCIALLY SPEAKING, law journalism was a risky business in the early Republic. According to Frederick Hicks,1 of the 30 legal periodicals that went into business before 1850, 24 also went out of business before C1850. And of the six that survived into the second half of the century, five expired by 1866, leaving just one to carry on over the long term.2 (That one is the Legal Intelligencer of Philadelphia, which is still in operation today.3) A simple recitation of Hicks’s body count does not, however, reveal the full intensity of the semi-Hobbesian existence of those early journals. A few features of their experience merit a bit more attention. First, the very short lifespans. Second, the total number of failures. Third, the persistence of failure despite enthusiastic support from pillars of the bar. And fourth, the depths of obscurity into which those failed journals have tended to fall. † Ross Davies is an editor of the Green Bag and a law professor at George Mason University. 1 Hicks was a Yale law professor and librarian, and remains post mortem “the foremost bibliographer of U.S. law.” Richard A. Danner, Applying the Access Prin- ciple in Law, 35 INT’L J. LEGAL INFO. 355, 367 n.50 (2007). 2 FREDERICK C. HICKS, MATERIALS & METHODS OF LEGAL RESEARCH 204, 207 (3d ed. 1942; 1959 prtg.) (hereafter “HICKS”). His list of 30 consists of the 29 pre- 1850 journals on his “Chronological List of Early American Legal Periodicals” and the one on his list of “Law School Periodicals.” 3 See www.law.com/jsp/pa/index.jsp (visited Feb. 8, 2009). 12 GREEN BAG 2D 187 Ross E. Davies THE SHORT LIVES & MANY DEATHS OF THE EARLY LAW JOURNALS irst, the matter of lifespan. While all of the journals on Hicks’s F list did appear in print during the first half of the 19th century, they did not fill the period up with law periodicals. Rather, they tended to come and go quickly, scattering episodes of law journalism across the half-century and across the country. In one big city – New York – nine journals combined to cover the years 1813 to 1826, 1833, and 1842 to 1854; the rest of the time there were no law journals at all based there. The longest-lived New York journal was in print for a dozen years; the next-longest survived half that long. Nationwide, and excluding the Legal Intelligencer, the law journals on Hicks’s list had an average lifespan of less than five years, and the median was two years.4 Second, there were more casualties than those Hicks identifies, although just how many more is an open question. Evidence of the existence of these journals can be hard to come by, making firm claims about them a risky business as well. For example, in an 1870 article listing early American law periodicals, the Albany Law Journal included the New Yale Judicial Repository (a journal not on Hicks’s list), but admitted that “[w]e have been unable to find a copy of it.”5 In other cases they may simply be too easy to miss. The Militia Re- porter (which survived for just one issue in Boston in 1810) does not 4 See HICKS at 204, 207. The experience of their English antecedent, the Lawyers’ Magazine (London, 1761-62), was similar. Id. at 197, 200-01. 5 American Law Periodicals, 2 ALB. L.J. 445, 446 (1870) (reporting also that the Repository was in print from September 1818 to January 1819). Rediscoveries of old journals do occur. A recent example concerns a journal from slightly outside the period covered by this article. In a thorough 1985 study of student-edited journals, Michael Swygert and Jon Bruce noted the short life (1875-76) of the Albany Law School Journal and their regret that “[u]nfortunately, the authors have been unable to locate the volume produced in 1875.” The Historical Origins, Found- ing, and Early Development of Student-Edited Law Reviews, 36 HASTINGS L.J. 739, 766 n.223 (1985). A dozen years later, Robert Emery reported the discovery of “one single issue of the Albany Law School Journal, dated April 13, 1876.” The Albany Law School Journal: The Only Surviving Copy, 89 LAW LIBRARY J. 463 (1997). 188 12 GREEN BAG 2D The Original Law Journals _________________________________________________ William Cranch served on the U.S. Circuit Court for the District of Columbia (1801-55), was reporter of decisions for the Supreme Court (1801-15), and edited the “Jurist and Law Miscellany” (1834-uncertain). _________________________________________________ appear on Hicks’s “Chronological List of Early American Legal Pe- riodicals,” but it does appear on the comprehensive “List of Anglo- American Legal Periodicals” prepared for Hicks by his colleague Pauline Gee.6 One journal that surely belongs on, but is missing from, Hicks’s list is the Jurist and Law Miscellany. Perhaps the first law journal to be based in the nation’s capital,7 it was founded in 1834 and appears to have gone out of business sometime in 1835. It is, however, diffi- cult to be certain just when the Jurist went under. On the one hand, the few available copies date from 1834 and 1835.8 On the other hand, a bookseller in Boston was advertising the journal for sale in 1836 as though it were still in print.9 Not surprisingly, the journals missing from Hicks’s list were short-lived (none seems to have survived for much more than one 6 Compare HICKS at 204, with id. at 512, 549; see also, e.g., id. at 548 (The Man of Business; Or Every Man’s Law Book (1833-35)); see also Marion Brainerd, Historical Sketch of American Legal Periodicals, 14 L. LIBR. J. 63, 66-67 (1921). 7 Hicks finds none in Washington in the first half of the century. HICKS at 204-07. 8 Libraries at Cornell, George Washington, and Yale universities and at the Ameri- can Antiquarian Society hold fragments of the Jurist and Law Miscellany from 1834 and 1835. WorldCat (visited Feb. 20, 2009). 9 See AM. JURIST & L. MAG., Apr. 1836, at 250. WINTER 2009 189 Ross E. Davies year), and thus they raise the already high mortality rate and lower the already low average lifespan of the early law journals. More- over, knowing that even a scholar as expert and as thorough as Hicks could miss at least a few (and that modern scholars continue to turn up evidence of additional mayfly journals), we can suspect – but not know – that there may be more extinct relatives of the Mili- tia Reporter and the Jurist and Law Miscellany resting peacefully in un- disturbed files somewhere. And perhaps there are more like the New Yale Judicial Repository, which we may never see.10 WANT OF SUFFICIENT ENCOURAGEMENT ccording to a contemporary observer, the unsuccessful early law journals “all perished, for want of the needful encourage- A 11 ment.” It surely was not for want of “encouragement” in the com- mon sense of “giving courage, or confidence of success.”12 There was plenty of that. It must have been something else. The little di- rect evidence of what that something might be13 points toward want of “encouragement” in the sense of want of “[t]hat which serves to . support, promote or advance, as [in] . rewards, profit.”14 That is, a want of paying customers. Or, more straightforwardly, not enough money coming in. 10 See Gilson G. Glasier, Early American Periodicals, 28 A.B.A. J. 615 (1942) (“Ap- proximately fifty publications with some claim to be classed as legal periodicals were started between 1808 and 1850.”). 11 G.G., Digests of American Reports and American Law Periodicals, 23 AM. JURIST & L. MAG. 128, 137 (1840). 12 NOAH WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1828). 13 Many journals went out of business without notice or explanation. See, e.g., Joel Fishman, An Early Pennsylvania Legal Periodical: The Pennsylvania Law Journal, 1842- 1848, 45 AM. J. LEGAL HIST. 22, 26 (2001) (“At the end of the seventh volume, there is no notice of demise or why the journal did not continue. Since we do not even know who the [editors] were, it cannot be ascertained why the publication ended when it did.”). And those who gave notice were not necessarily inclined to dwell on specifics. See, for example, the last page of the last issue of the Carolina Law Journal (1830-31): “This number completes the first volume of the Law Jour- nal. For reasons which it is unnecessary to state, the work will be discontinued.” 14 WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE. 190 12 GREEN BAG 2D The Original Law Journals There was indeed plenty of support of the boosterish sort. In the 1836 edition of his book A Course of Legal Study, David Hoffman (the first law professor at the University of Maryland) commended law journals generally to his readers: We therefore advise our student to improve his otherwise lei- sure hours, with the perusal of the reviews of legal works; of the magazines, and other repositories of legal essays,– and es- pecially of such admirable works as the American Jurist, the London Law Magazine; and several of the continental works .

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