American Legal History
I take the state of things to be sufficiently chronologically uneven that a little time maybe would be useful straightening that out. My proposition so far comes essentially to this. The process of haulting anything that might have been called the American Revolution that directly counter revolutionary structure which is the federal constitution of 1787 and its aftermath essentially designed to provide for a system resting stably on the twin powers of the British empire in the 18th c - a large public debt and a large army necessary for a continental empire unlike the 18th c British empire which depended primarily on naval power.

Because the primary purpose of this new more stable imperial structure in N AMerica is to possess the continent and to resist the incursion into that system of the European powers. The completion of that process of consolidation of an empire of the US in N America occurs when Napolean decides to feed it the crucial middle of the continent in 1803.

The process of expanding into that space via the mechanisms of established in the federal constitution. That is, through the use of internal improvements to stimulate the movement of settlment and therefore of land speculation into the interior of the Ohio and Mississippi Valleys then begins explosively in a process which surprised the engineers who architected it, like Thomas Jefferson himself, with its rapidity and its force.

That process of national or imperial expansion into the internal system of N America is accompanied in the legal structures by that temper of mind which Hurst characterizes as the principle of the release of energy. That is, that it is the function of the law to facilitate development by enabling acting users of land, water, capital and doing what can be done to facilitate the expansion at the expense of more passive traditional or nondeveloping users of land, water, and capital.

The principle of that expansion of energy is also adopted into the structure of the public law of the empire by the Marshall court, not the Supreme Court from its creation but the Supreme Court from its recreation which is essentially a recreation as a bastion of the Federalist party in the closing months of the Adams Administration awaiting the onset of the radical Mr. Jefferson.

My point with respect to John Marshall aside from caution as at all times, that there is no way of misunderstanding American constitutional development more deep and incurable than a study of American constitutional law, my point is to show the ways in which the Supreme Court's institutional interst or at least the Supreme Court's institutional interest at least perceived by the Chief Justice of teh US who wishes to be the Supreme Court. The Supreme Court's institutional interest lies alongside teh release of energy principle in its public law form in that it is precisely the control of the docket and the rhetoric of constitutional law to guide that release of energy by determining what the questions are that lie within the scope of the constitution.

We're passing in a political and economical sense through a series of developments which are relevant and we need to catch up. Napolean's decision to disburden himself of an imperial future in N America is, as I have pointed out, the consequences of the failure of his policy in the Caribbean. But this failure is in itself only part of the larger proposition which is the failure of peace in Europe.

The patch up in the peace of Amiabi in 1802 is just the beginning of a short Cold War terminated by a significant returned hostilities which in turn, provokes a decision on NApolean's part to invade Russia and the consequences that follow from that are the reorganization of Europe in a reactionary mold.

But in that period at which, after the return to war and before the invasion of the Russian lances broken French power, the situation is essentially one that we learned again after 1945. It's a bilateral power confrontation in Europe. I suppose it would be fairer to say we saw it in the winter of 1940 since the moment we're talking about is a moment in which the whole European peninsula is effectively under a single military control and it is England fighting on alone. But the situation is quite different than it was in 1940 because nobody has any airplanes. So the consequence is a military standoff in Europe which gives way to an economic war. Napolean is attempting to close the continent to British trade thus strangling the British economy and the British are in effect, attempting to blockade Europe which cannot be done. The essence of the thing is to transfer the problem to a war against neutrals in the waters of the world. The Americans are the primary problem. If American trade with Europe goes on, then the European trade system can limp along despite the efforts on the part of the British to close the global carrying trade to Europe. If the Americans can be beaten off the waters or at least prevented from trading with Europe, then Britain has some hope of reducing Napolean's empire by longterm strangulation. Not surprisingly, this is going to turn into a confrontation on the sea between British and American vessels and its going ultimately to involve open hostilities with the US. But taht's because Macetom is going to decide that the British can be brought to heal and attacks on neutrals in the Atlantic can be prevented by closing America to British trade.

The attempt to close the US to the Atlantic, even temporarily, is simply the ruin of New England which from the point of view of the New Englanders is probable Macetom's whole point.

A reasonably thriving New England seaport called New Haven, CT simply ceases to have any meaningful economic purpose and becomes instead a place for training law professors - a condition whihc was never risen oiut of again. But that's just not true of New Haven. IT's true of ports with RI, Mystic, CT. It's true pretty much of the seabord of New England. The Atlantic facing nature of the pre-US empire is crucial to their survival and the federal government has taken a power - the power to close international trade - which no government of the US is ever stupid enough to try again. But you have to be extremely smart to be extremely stupid.

Gentleman, this is the greatest constellation of intellect ever convened in the White House, says John F. Kennedy to all the surviving American Nobel Prize winners since Thomas Jefferson died here alone. That would pretty much count for. Of course, that administration too is busily building tens of thousands of nuclear warheads to keep the US safe.

Fortunately, it didn't pay all of the costs of its stupidity that we paid for Mr. Jefferson's. So rather surprisingly and oweing essentially to the careful political gerrymandering of the empire, Mr. Jefferson manages to destroy enough of the economy of New England to create a real secessionary movement among the New England states. The Hartford Convention is a pretty good model for what will be going on in SC in 1860.

And no shortage of stress and burden on Mr. Jefferson's chosen successor Mr. Madison who will suffer the indignity of having the White House burnt out over his head under the British marines.

But none of this touches the Virginian control of the levers of national government. There's no other place to go. So MR. Madison succeeds Mr. Jefferson with total control and Mr. Monroe succeeds MR. Madison with a similar degree of what came to be known as "good feeling." This is the era of good feeling. You could think of it also as one party politics or VA control. Of course, it's clear that the dynasty cannot continue indefinitely. The VA Regency isn't going to remain in total control of the empire but if it merely gives up every once in awhile to somebody called Adams for a term, no great difficulty results.

Indeed, even now, the imperial system hinged on the Mississippi Valley is becoming an independent force with its weight in the politics of the empire - it is the west which is beginning to hold the real balance of power in the national structure.

In 1815 as peace is being negotiated in Paris between the US and the British empire and the so called War of 1812 is coming to an end as part of the general Pax Britannica that is coming from the defeat of Napolean, a backwards kid with bad disposition and a reall bad tendency towards killing with a troop of American militiamen manages to defeat a reasonably well trained brigade of British soldiers in New Orleans and Andrew Jackson becomes the greatest hero of his time - half man half alligator. It's not totally incorrect but there you have him. Andrew Jackson is a man on Tennessee. That is, a creditor's lawyer and a slaveholders friend, self made man.

With all of the frontier salt of the earth quality of no book learning but wealth of knowledge of people and how it's done sort of thing. Not really a particularly good choice for the TN Supreme Court but maybe the virtues required on the TN Supreme Court aren't necessarily the ones that would have been required say if he'd been born an Adams in MA.

Jackson's the temper of the time, no doubt about it. And maybe we should add the young senator from Kentucky Henry Clay. It's a hard drinking, not particularly moralistic fightin, killin sort of culture. Though it may have some dubioties about teh rich, it hasn't any about self made men. It may not like banks but it's nothing against creditors and of course, it's more than sufficiently comfortable with slavery.

It's growing in importance geopolitically, nationally, or imperially I think I would prefer to say. And it's a force that is that western way. It's a force which makes itself felt in the law and in the science of government quite profoundly.

For all that the Virginians are neatly and what shall we say? Corruptly in control of the empire. They're by no means capable of sllowing the pace of social development to the crawl in which the national government rests during this supposed era of Good Feeling. There are steamboats on the Hudson R and if there are steamboats on the Hudson R then there will be steamboats on the Mississippi R. If there are steamboats in the Mississippi R then there will be steamboats in the Missouri R though that takes a little more doing. It is one thing to pile at a steam driven craft up the Hudson or around NY Harbor and another thing to do it in the Mississippi where there's plenty to steer around where a young Mississippi R captain who's going to call himself Mark Twain will tell you pretty soon. But it's even more difficult to send a steamboat up a western mountain river even the Missouri.

Still, it's clear chemical energy itself is now behind the possibility of drawing that empire closer. We're talking about steam engines running on water. Nobody is yet thinking about the possibility of steam engines running on land on rails. A few British coal mines are using steam engines to produce transport but they're mostly vertical transport not horizontal transport now.

Still, the force is there. With that technilogical force and the sense of the political contingency that we saw in Thomas Rodney's notebooks, the law depends on what the jury does. With that sense that Hurst captures that the purpose of the law's doing what it does is to let people get on with their business and get out of the way.

And the recognition that what they do is tied to the monotization of the land. Buy it low, sell it high.

What's coming together is a cultural environment in which privileged is genuinely offensive.

Something really democratic is happening inside the empire. It's not happening in a revolutionary way but that's precisely because, as the historian Frederick Jackson Turner will be noticing at the end of the 19th c, the revolution is always moving west.

The fermentation that breathes out of that will come back into American society very strongly all the way into teh Atlantic Ocean in the 1830s. All those movements of religious and social and dietary and sexual reform that are going to sweep America in the 1830s. A sociologist Alex Tyler who wrote about that upwelling in a book she called Freedom's Ferment had it right. I think it is. That's freedom's ferment all the reformism and out of all that reformism is going to boil out the sense among white Christian people that there is something vehemently wrong with slavery and that's goingt o change the fate of the empire. But, at the moment, none of that is yet the picture. It is the revolution moving west. It is the change is constantly occurring but it's not riling Philadelphia. It's out there somewhere on the bowie knife frontier. And of that bowie knife frontier - that shoot first ask questions later common man's paradise - MR. Jackson is a crucial and important symb ol.

Eastward of that fermenting white dash to the Mississippi R and beyond, one significant effect of what is happening is the slow decay and disappearance of the property qualifications for voting in the established states of the old empire.

The federal imperial constitution has left the question of voting in federal elections to be determined by state qualifications. AFter all, we the people of the US - the constitutive body of the federal empire - doesn't mean the people of the US. It means the people of the US, those who count and those who count count according to the rules of counting in the states. That's the imperial bargain again.

So in the beginning, those electing the federal House of Rep are the people electing as the constitution provides the most populous house of the state legislature which is only the people not the people.

And in MA or NY or anywhere else in the old world, the people have property and thus, they vote.

That's John Jay's principle right? The people who own the country ought to govern it. Those who have a stake in society. You couldn't make them church members in MA anymore. That vanished in 1691, but of course you can make them property owners. To allow landless men to vote - we are talking about the people that's men who count. Men who count, that's people who own something. You allow landless men to vote and you might as well call for despotism in its flat situation. That's the lesson of the Roman Republic isn't it? What disorders the republic is that all those landless men are able to be swayed by bad and corrupt argument. Republic perishes of an absense of virtue.

But this is not the doctrine official. This is not the rule of the empire. It's merely the law of the individual states. There's nothing in the imperial constitution which bears on the matter and the states are undergoing change at Jacksonian persuasion. That will be ruling the US before too long is only now beginning to wear away at the idea of property qualifications for voting. By 1824 there will be national elections effectively conducted in a world of unvisal. That means white manhood suffrage in which those people who are white men may vote whether they own anything or not. They are now the people. At this point we are talking about we, the people of the US constituting white men of age. We're not, you should know, universally concerned with their citizenship at all. One of the great lies of the US at the end of the 10th c is that there is a natural relationship between citizenship and voting. It's not uniformly true.

But what is true at any rate for these purposes of importance to us, is that we're moving towards something which no longer sees that stake in society principle as having any meaning. We are now in a world that talks about American democracy in a different fashion.

The election of 1824 produces an outcome which demonstrates the difficulty that has grown up underneath the VA aristocracy in their corrupt control of the empire. It is no longer possible to get a determinant result. Mr. Jackson, Mr. John Quincy Adams, and Mr. Henry Clay all possessing equivalent support in the Electoral College. The election of the Pres of US moves to the House of Rep where the complex machinery of presidential election in the House of REP calls upon every state to have a vote determined by the majority vote of the members of its delegations, etc, etc. In the end, Mr. Jackson finds himself defeated by the coalition between John Quincy Adams and Henry Clay in which Adams becomes president and Mr. Clay becomes Sec of State.

This is from the point of view of the common man, thievery. Or at any rate, Mr. Jackson wishes them to believe it so. A bargain corruptly struck between Mr. Clay and Mr. Adams has defeated democracy and Mr. Adams is a very well prepared pres of US. It's hard to think of anybody with a possible exception of Mr. Clinton who came to office more thoroughly imbued with the learning necessary to become Pres of US and Mr. Clinton's father was a dead drunk. Mr. Adams father was pres of US. That makes a difference if you have any intellect at all. It's a masterpiece of demonstration that those two families coming to MA in the 17th c, more or less the same time in the same condition of what shall we say equisitaveness, achieved their apothesis very different times. The Adams's produced a father and a son at the helm of the US and they were too thoughtful and skillful but unsatisfied politicians. The Bushes produced a father and son pres of US a little bit later on and they were as you see them. Mr. Adams is indeed a superbly qualified pres of US. He has great diplomatic experience. He understands the domestic politics of the US intimately. Congress is quite literally his playground of youth. He's learned in international law. He understands sciences and engineering in their public consequences. The worship of the intellective Macetom is a Virginian piece of propaganda. Not that he isn't a smart guy and he draws beautifully. He speaks poorly but writes well.

Mr. Adams does both. Of course, he's not interested in building Paladial mansions for sleepiong with slaves in. That's not Mr. Adams at all. He's going to spend his decling years in homespun black as a mere member as the US House of Rep. The only Pres of US ever willing to put himself back into the run of ordinary house business in which he's going to spend decades carefully and determinantly trying to buck the gag rule against the discussion of slavery in the House of Rep. He is a committed abolitionist and he's going to die in the process of it. Choke himself to death making an attempt to speak against slavery in the House of Rep. Macetom is going to leave a heap of debts and a fine university and a bunch of black children he's not going to acknowledge. I don't know why it is exactly that we have a monument in Washington for Thomas Jefferson and we have not even a shoebox with a plaque in it concerning John Quincy Adams, but so it is.

His administration is blighted from the get go. It's outcome written in the fates. He has stood in the path of our hero Andrew Jackson. He's not half man half alligator. He's all man. Swims in the Potomac every other day - hard. I suppose that would be regarded as a big deal among our mountain bike racing presidents if it were not for the fact tthat you can't swim in the Potomac anymore unless you fall in off the presidential yacht.

So, that structure of the common man's rise to power Mr. Adams suffers from being the MA elitist over whose corpse the common man rose to power and the result of the 1828 election is clearer than the election of 1824. Andrew Jackson comes Pres. of US. Now, all of this from our point of view before we come to the grand constitutional problems of the bank and slavery, hinges for us now in this moment 1828 or 1830 hinges on the question of what the law of the US is. That's our concern. And there are two quite possible answers. One is the law of the US is the law made democratically by the American Republic. And another possibilty is the law of the US is the Common Law.

Now there's a lot you can say about the problem of the common law. In the first place, it's English. In the second place, it's medieval. In the third place, it's not democratic. In the fourth place, it isn't written down in any place where an ordinary man can read it. In the fifth place, it's taught at Harvard. It's a puzzle culturally speaking to the rising west. You see how the rituals of the common law can be brought down into mudville. That's what Rodney's trying to do. Here's the fourth volume of Blackston, here's the constitution, who should be punished for what crimes around here boys?

But still, it's not surprising that there's a political vulnerability in all of that.

The thing is that the republic is very much in debt to lawyers. They're the culture heroes of the revolution that didn't happen.

They're the beneficiaries of the literary culture of the new republic. It's never been more beautifully brought clear than by our colleage Robert Ferguson's law and letters in American culture which begins with I think really the useful litigation of the power in cultural terms of the legal profession at the opening of the American republic. It had made the constitutional counterrevolution that we called the American Revolution right? All those guys signing large enough for King George to read with spectacles, although he wasn't a lawyer he was a Boston...that John Hancock you know? but still, everybody's sort of a lawyer and it's a lawyers republic in the beginning full of lawyer's rhetoric, indebted to Macetom for an indictment of the king and indebted to James MAdison for rewriting 17th c English legal documents. It's indebted to Aaron Burr for shooting Alexander Hamilton or else it's indebted to Hamilton for fastening the debt on the republic but no matter what you say, the NY lawyers have much to do with it all and everybody gets their high class thoughtful propaganda from lawyers. They're teh political commentators of the republic. They're the echo chamber of received opinion.

We report, you decide. It isn't going to be easy to overtturn the cultural force that lies behind the lawyer's learning and the lawyer's learning is the learning of the common law.

The Supreme Court really does pursue its interest. Clearly enough that its interests can be an interest carried out over the course of a period after 1812 by two judges - the VA Federalist John Marshall and teh MA Jeffersonian Joseph Story. neither one of them actually true to his region or his party. In the end, they are justices of the Supreme Court and their behavior is for the law in its power in the empire.

Nobody does more to fasten the common law on the American republic than Joseph Story unless maybe its the NY lawyer James Kent about whom we're all supposed to feel quite warm. We don't work in Kent Hall anymore. The 19th c named bujildings after real people. We work now in someplace named after some thug who had a cable TV business around Philadelphia or some tax lawyer who was cast out by his colleages and made enough money so now he has to prove again how important he was in Columbia Law School by naming buildingsn after himself. Nobody's going to name anything after anybody great in the 21st c.

But Kent Hall now housed in East Asian Studies, once the entirety Columbia Law School before the completion of the so-called toaster. Oh, I'm sorry it's no longer the so-called toaster. It's Jerome Greene Hall, named after a real estate manipulator in Manhattan.

The beauty of Peter Cooper Village in Stuyvesant town is they're named after Peter Cooper in Stuyvesant. They should have been called MetLife? hedgefund city. Bloombergville maybe? So Kent Hall we are all supposed to be very grateful to James Kent for having given life to the Columbia Law School. What it really is is the commentaries. Kent's commentaries form the backbone of a theory of the American common law. Their how the student is supposed to learn.

Of course, there's Blackston, but the problem is that Blackston is full of the king as you might expect. That's a real problem. There are good people in VA. Not many and they don't survive very long. One of them is George Tucker, good solid law professor type. The kind of lawyer Macetom might want to have around. The other one is George Mason. You name universities after these people.

Universities. So, here's George Tucker puzzling over the question of how to teach law in America and realizing that the right thing to do would be to take Blackston and add a whole half a volume of footnotes explaining that this is all Royalist nonsense. Really it's the first volume of Blackston. George Tucker produces the first American Blackston. American, not in the sense of being printed here or stolen here , but made here. Two colume condensation of four volumes of Blackston with about a half of the first volume notes of disgust and rage and correction and appropriate propaganda to counterbalance all this king stuff. That's another way you could go. You could try to deroyalize the common law.

But there's going to be a great noise. It's going to be a great yahoo convention of irritation at the US SUpreme Court for citing foreign law. Can you imagine such a absurdity? Joseph Story is citing English cases. It's a grand Atlantic world of commerical law knowledge and how dare he? It is true. The common man has no other knowledge but that the idea of citing foreign law means next we shall have foreign soldiers patrolling our streets or universal healthcare or some other gross oppression. It's not entirely wrongly captures a part of the spirit of the movement to sink the common law in the US. It has a little bit of that right wing populism that's now so very popular too.

But there's another side to it right? The common law is the law of aristocracy. It's law of land, water, and the space and law of people all presume aristocracy and this is not an aristocratic society. This is a democracy plus or minus a couple million slaves.

So, there's a legitimate ideological objection to the idea of the common law as the law of the US. What should the law of the US be then if it isn't the common law? Well, it ought to be something that an ordinary man can read. It should be a code. It should have reasons and structure and be concise. It should be Protestant. The words should be available. EVery man can read it for himself. What's all this fathers of the church way it was done, the memory of man run it not to the contrary shit. We live here in the US in the land of new. What's all this old stuff. There should be a book and everybody should be able to read it and it should be clear and simple and you should know the rules. Everybody should be able to do it because of course the other part of this is that there's some unjustifiable oligarchical privilege in all those lawyers right? They're just priests of mumbo jumbo. In a democratic society, it should be feasible for people to erad the law and know what it is and to obey it and serve its purposes and to have it serve their own without all this pettifogging.

So we shoul dbe clear that Romanism is no part of this story. This absurd delusion that a modern, by which we mean 19th c European society could possibly be successfully governing itself based on the law of maritime commerce in the first century A.D. That's no part of this story. Nobody is here thinking that that's the sort of code we need. It isn't Justinian they're thinking about.

Napolean, on the other hand, no small matter. Here, there's a thing to think about. All bony may be not quite the cup of tea though you got to admire him for beating the crap out of the British empire right? But what is serious about the Code Napolean is its attempt to rationalize the law of a modern society in a modern way, at least that's their thinking on it. It's also sort of Napolean's thinking on it. He has no knowledge about how far it's going to be bent by the lawyers in their own direction but he thinks it's a matter of some simplicity.

Make the family responsible to its head. Make the head responsible to me and I will keep order in France, he says. That's a drafting instruction and a very shrewed one. Fidel could not have put it better.

So, the sense that what is wrong with contemporary codification is not its logic or democratic power but simply who it is that does the work. That there ought to be in a modern democratic regime a simple law book that anybody can understand and that has been built as an act by the state of the creation of an accessible legal order. That has a lot of appeal and it has not ancient but contemporary power to convince.

In MA it wouldn't even be the first time the impulse towards the creation of a codified, alphabetized, Protestant legal system in which every man can access the word and everybody can read it and judge it itself is present in MA from the beginning as we see. To talk in 1828 about a project successfully undertaken in MA in 1636 and again in 1648 and again in 1672 doesn't seem too outrageous. So when you read Sedgewick over in far Stockbridge thinking about how codification ought to work or for that matter even Robert R. Though there may be a great deal of romantic rhetoric of the people rising up, a whole bunch of you can't call it ? because the Germans haven't thought that up yet. But ? is. The coming out from evil darkness into the sunshine of a fundamental American law sort of thing. All of it does in New England build on a basis which is sort of really there and the appeal of this in the Jacksonian world of the common man votes and the common man has access to the levers of government and the system of law should be noble by everybody. It's a very powerful combo.

Jacksonianism is also going to bring to bear on the machinery of governemtn a similar point of view. It's going to stand up very strongly for the democratic value of patronage and the spoils system. After all, the Jacksonian's view is every act of government, every role of the state, every job in every administration also should be one which can be performed by anyone of common wisdom conscientiouslly and virtuously pursuing his duty. Therefore, it's entirely appropriate that when an election is won the government as a whole should be cleaned out and the friends of the party put in. Government will be better conducted, more virtuously and democratically conducted, under a spoils system of political patronage becasue the knowledge that governement is going to have to allow everybody to be swept out and everybody who has never done a job before to be swept in when party control changes, means that we will be compelled to engineer governemnt so that any job can be performed by any boy if he's just minimally honest and conscientious about his work in much the same way that he must be able to read and administer the law. Jacksonianism therefore, is going to try to solve with patronage the great problem of political parties in a democracy which is how do you keep the party together between elections? That's the great problem of party coherence at all times.

What do you do between elections to hold the guys with you? The primary 19th c political answer to that question between 1825 and 1890 is you give out all the government jobs. You put the party in the state. This is not the final wisdom on the subject. But it's a good beginning. The final wisdom is you integrate the party directly into the state as in say Beijing or Moscow. Or, you give the party a lot of big Paris apartments at cheap prices which is the western European solution. You integrate the party into the state by giving it a lot of state benefits. You give it a mistress paid for by an oil company and a nice big apartment from the second establishment and a job on the municipal payroll that you don't show up at. But the party fastens itself on the fat of the land. The American solution had at least in theory in this Jacksonian environment, the advantage that you could be transparent about it. The methods by which a French party maintains itself in power are never going to be transparent. There's not going to be any honesty about them. Never. No matter what party it is. This goes back to the difference that the Americans are quick to identify. The politics of the odl Europe is built on the King's secrets and the politics of the New World is built on the transparent truth of democracy. It's where the propaganda comes from. But in that sense too codification of the law corresponds to an idea about what is the American newness in this period? It's the release of energy applied to the release of energy principle. What we ought to be doing is getting the law out of the way of the law. Let's write it down simply and have it done.

It appeals to the other great in-built temperament of the Americans which is becoming their technologism. Their great desire to tinker with machinery.

Which they're also going to come to think of as about democracy somehow.

It isn't exactly but it sort of feels like it is. All over the US there are guys tinkering. I was hosting for a long period of time some Indian lawyers who were living in my neighborhood often in my place hanging out with the lawyers who work for me. One of the things that the Indians observe they said "Funny thing about you Americans is you have the right tool for everything. If you need to fix a thing you go and look for precisely the right pliars or the right screwdriver or the right kitchen implement or the right this, that.And you've always got it. We make do. We look for something that would sort of do the job and maybe it works or maybe it doesn't." You begin by saying well right. Even in the wealthier parts of a society with a significant deficit in useable capital, there's less tools around. But the truth is, even if you think about a Dutch home, it's the pinnacle of 700 years of making good comfortable homes for middle class people in town. Dent Hawk has been thinking about how to have a sleepy little city that everybody will be able to use well for hundreds of years. Every house in Dent Hawk will show you that because it's light switches, pull cords, and window releases have been optimized for having good comfort without paying any money for hundreds of years. But the house is not fully full of tools. The Dutch farmers farmstead has been carefully thought about for hundreds of years so that it produces as much as possible and costs as little operate as you can.

I know a man who lived in Leiden for 3 decades and for more than 2 of those decades he ran a restaurant which was a fine one. He, as a sort of family-less gay man with a partner, that restaurant was his family and he ran that workplace with a degree of comraderie with teh guys who worked for him there for a long time. It was a lovely place. Then for two years in a row it didn't make anymoney and he shut it down because nothing, not even your life should be run at a loss. Everything should be run at a tiny profit. His place is not full of tools. His kitchen is not overwhelmingly well-equipped. You couldn't open a bullshit place in the meatpacking district with his kitchen these days.

The Americans invest in tools all the way long more than anybody else with their equivalent level of available capital. They're constantly trying to tinker something into a different condition and CT is dumping wooden clocks on the world market. We're not now talking about interchangeable parts machining. We're talking about the building of wooden clocks and out comes all of this stuff pouring into the Atlantic world made by these guys who also make nutmeg graters. A nutmeg grater in CT. It still says on the licsense plate the nutmeg state. The nutmeg is in java but the grater is in CT.

That technologizing. That sense of the tinkering man is changing the Atlantic world. Sugar is what it is. But tobacco is in the pits.

Those Virginians with their monopoly on slave selling and their soil dying more and more from the tobacco they've been trying to grow on it for 4 generations. They need something else. And some guy in CT whom nobody knows anything about yet is going to make himself famous all over the world because he's going to figure out how to separate the cotton fiber from the seeds in an efficient manner. Come 1793 and the cotton gin, the slave sellers have just earned themselves an immense internal empire. Not only this, they have begun to figure out how to make capitalism friendly to slavery. They're going to turn the trick, which is going to be of so much interest to Marx and Engels which so interested in the American Civil War, they're going to turn the trick of allowing capitalism to support its adversary because they're going to make the capitalist system around the world that hinges on cotton thread and cotton cloth. They're going to turn it into a downstream for the slavery of N America. They're going to do that because a guy tinkering in New England has figured out how to separate the seeds from the fiber.

So now you can farm it in the kinds of quantities that would justify using captive labor to grow it. And you can undersell Egypt and India.

And you can become more necessary to the second British empire than its own possessions. Come the end game, you even suspect and come damn close to drawing the British governmentinto a war against the US for slavery.

Grass will grow in the streets of Manchester say the Confederates, if you don't help us to break the Union blockade. Starving English workers will overturn your governmne tif you don't support us.

And encourage the growth of slavery in the US and the growth of slavery from here on out means the growth of cotton cultivation.

But, none of that without some tinkering in CT. Over on the other side of the Missouri River some tough people have gotten horses. The buffalo were leaving Ohio when G Washington became president. It doesn't take even a generation for there to be no buffalo on this side of the Mississippi R. There's just no place for them. Also, not much place for the Sioux a bunch of very tough people inhabitiing the forests of Wisconsin. They have never seen yet the sacred black hills of South Dakota. They're not going to see them until they get themselves some horse because you wouldn't want to walk there. And there's no horse until the Spanish bring horses and the horses excape Mexico and begin to populate the Great Plains along with the buffalo and then out from their forests come the Sioux. Get themselves some horses and begin exporting their toughness into the neighborhoods of not necessarily tougher people on the plains. Pretty soon within 3 generations not just the Sioux but a whole bunch of tough people have got horses. Very tough people. Apache, Kiowa, Sioux, Shayenne, and way worse than anything else this mysterious collection of violence and sadism called Commanche. All of it mounted and pursuing buffalo. No longer are we hunting buffalo as we have done for tens of thousands of years by stampeding them off a cliff and then killing the ones whose legs break. That's efficient up to a point but it's not a moveable culture. On the other hand, learning to ride a horse without a saddle or stirrups, a bit, or any of the other horse furniture that evolved in Europe over long time. Riding a horse without any of the furniture and shooting buffal fromm the back with a bow and arrow so they die, this is quite a skill. It takes poeple less than 3 generations to develop it very highly. Now come these white people who wish to live in their corner of the world and this is not going to go well.

In particular, there is no firearm anybody knows about that can deal with this. The bow and arrow in the hands of a plains guy goes further, hits harder, is discharged faster, can reload quicker and is way more mobile than anything that anybody's got at all. nobody has a rifle you can fire from the back of a moving horse. Nobody's ever going to have a rifle you can use from the back of a moving horse until the horse is made of iron and the gun is a machine.

But there is a guy tinkering in CT. There always is. Fooling around with parts and he's got a little short barreled gun that revolves shells under the hammer which is no use to anybody for any purpose.

And so it gets forgotten and it gathers dust for 30 years. Meantime, over on the other side of the Mississippi R if you need to fight these fellows, whichever one they are if the Commanche show up you don't just need to fight them you need to commit suicide immeidately. You have to do it on rainy days. If you fight them on rainy days you are not absolutely certain to perish because the high humidity makes the bowstring slack and vrey much reduces the range of the archer on horseback to the point at which you can deal with him maybe with guns. The funny thing about him is his bow is at least in theory 2,000 years behind the EurAsian? bow. The Asyrian who came down like a wolf on the fold. His bow was made of bone and sinew both and recurved and reinforced and he's trying to get a whole lot of power out of the reinforced springiness of a double curved bow. The guy on the plains is not bothering with any of that. He's got a single curved bow. It's made only of the one horn. The bone it's made of. It's not got any reinforcement of any kind and it's strung with a line made of the gut of the buffalo it killed and it works better. There's an extraordinary intelligence behind the supposed stupid savage. There always is.

And fighting him on rainy days barely works and then somebody realizes that that thing. What was it called? The pepper pot? The thing made by the CT tinkerer Samuel Colt? If we had a couple of those. It literally comes down to ransacking attics looking in the 1830s and 40s for anybody whose got one of those Colt's revolvers. In the end, when they get made they're going to be made out of replicas of Colt's originals which are as I say behind the furnace or something. That's where we're goingto get all this nonsense about the gun that won the west. It's just another CT tinkering process. This technology, this idea that there's a better mousetrap, that there's a way to do it. Well it's going to have its moment of great apotheosis back again to that Mr. Whitney who's going to do it again. After all, if you get a contract to make guns.

Get a contract to make guns for the US military. One way you could do it is to make guns. Another way you could do it is figure out a way to make interchangeable parts for guns. Nobody else in the world has thought this thought. Everybody else in the world has gunsmiths. Soon, the US will have interchangeable parts for guns. Barrels and stocks and firing chambers all made uniform to single sets of specifications using machine tools rather than the skill of the workmen to produce standard rifle barrels nad everything can be taken down and swapped nad put together and it all works perfectly. Vast difficulties in military logistics fall away but of course, logistics in every kind of manufacturing fall away because the interchangeable parts revolution is the beginning of what the 19th c really can do.

Now this is an outpouring of invention that's goingt o continue. The historian of patent law employed by a drug company would no doubt say "Yes, you see there's a patent law in the US and here's the outpouring of innovation produced by the statutory monopoly" Colt's revolver, to the contrary, notwithstanding. What is it that's really happened? That the law has provided statutory monopolies for inventions so everybody's out inventing? The law provided statutory monopolies for inventions in order to encourage skilled laborers to immigrate to the US. I've said that laready. And they have. But they haven't come to the US because there was a patent law only. They've come to the US becuase of religious oppression in the Rhineland and because there's gold in the streets of NY and for every reasons that anybody ever does anything like going on an adventure but one thing's for sure, the inventiveness of people is seriously rewarded. And by that I don't mean primarily with patents. Yes, Mr. Howe will patent a sewing machine and Samuel F.B. Morse the portrait painter will patent an electric telegraph, not a small matter.

But they're doing so because they're Samual FB Morse the portrait inventor. Or because they're Samuel Howe the garage mechanic. In other words, it's the very idea of the inventiveness more than the legal system for containing it whihc is the spark. The law is the release of energy principle. The law is make it possible for inventions to make money.

Which they do.

Now, legal technology, too, right? This is codification. The code is a machine made of law. The common law is a law made of history.

It's not surprising that there's a deep abiding theoretical hospitality between the American technocratic inventiveness and the American law and religion of the 19th c. This is th einsight being pursued by Perry Miller, the great American intellectual historian at Harvard, who is very very drunk all the time. He's an extraordinary teacher because - I'm particularly sympathetic to teh difficulties he faces - he teaches drunk with an ease and an elegance and a simplicity of style which is really quite remarkable irght up until the moment when on a famous Tues afternoon he has a massive stroke in the last 5 minutes of a class and tries to complete his last sentence with a bunch of graduate students sitting there worrying and recognizing that they're undergoing a traumatic experience. If you find yourself ever in life talking to those American cultural historians or teachers, lawyers who were sitting in that seminar that day, all will tell you how marked they were by it. But as this is all happening, as his life is decaying around him, Perry Miller is trying to imagine the great book on the life of the mind of AMerica in the 19th c for which after he is dead and they're going to give him a Pulitzer Prize for an unfinished book. The reading materials, the sources he is collecting for that on the law side are the legal mind in America, which I've urged you to read. I still do. It's a good exercise, among other things, for imagining what it is out of which a historian's great book is made. You can see what Miller is collecting and then if you go and look at the unfinished life of the mind in America down to the Civil War, you can see what he means to make of it. But, Miller is trying to imagine how to draw together three strands or American religious thinking before the Civil War, American legal thinking before the Civil war and the technological thinking of AMericans. I believe he's deeply right about this. This is the way to go at this question. The codification movement is the technological tinkering of the American spirit in relation to the law before the war.

The end of it, in a good as well as a thrilling and deeply depressing way. The end of it is the obsessive work of David Dudley Field. First codifying the civil procedure of NY into the field code which becomes the guiding civil procedure strucutre of NY state all right down until that wonderful moment when the Lord God on Sinai gave the federal rules of civil procedure to Moses and Charlie Clarks standing shoulder to shoulder. You remember how it is you were tauight about it in civil procedure right?

And after the divine revelation of the federal rules of civil procedure, the NY civil procedure changed a little bit. Anybody who's ever had to worry about the question of doing business in Ny under the CPLR. So here we have the beginning - the codification of the civil procedure of NY - and a few more codes that David Dudley produced - substantive law in NY

So you know they keep a skeleton in London for meetings of the Board of the University of London. It's the skeleton of Jeremy Benthom. It's wheeled out for board meetings and so on. What would you do with a dead realist except prop him up and keep him voting?

Jeremy Benthom wrote to John Quincy Adams with a generous offer to codify the law of the US for free. It was an exercise in political sanity.

Makes perfect sense. Benthom's first great work in 1776 is just one long hostile review of blackstone called the Fragment on Government. That's where it all begins - the hatred of the mystification and the medieval bullshit. Benthom says the fictions that run like siphylis in the veins of the law. It's that spirit and David Dudley Field has caught the whole of it as though wheened by the skeleton of Jeremy Benthom from his mother's breast. He's going to codify the law of the US and by the 1850s he is working on his masterpiece which is the codification of the laws of the world. One big code and everybody's going to adopt it. It's a glorious vision.

Of course, it's also insane.

But not any more insane than MR. Graham's cracker which is going to reform the human intestine. Or ? which is going to reform the climate of the world by the lion will lie down with the lamb in ? association. No crazier than Brook Farm that there's going to be factories remade as Grecian temples. Probably no more insane than Henry Thorough's belief that he's going to go off and live by Walden Pond and eat raw woodchuck. He's really going to do because he's going to take his laundry home to his mother in Concord every two weeks but it reads well. Henry Thorough the inspector of rain storms.

Who has gone out and cut a hole in the ice on Walden Pond and looked beneath at the quiet world of sand and plummed the pond in every direction and discovered that its axis of greatest length intersects its axis of greatest width right at the center of the pond and says to himself and so he's discovered that it's true of ponds as it is of men. You find their greatest depth at their center and you plum them down. He's thinking about going to jail for not paying his taxes to support Mr. Polk's war in Mexico.

He says the state should be a good cow and give me milk and butter and if it hook me when I walk in the fields, what then of it?

But of course, he's troubled by some rumblings at the pond in this perfect world of economy of his where he hoes his own beans and he never bothers to talk of his laundry. He's troubled by the rumbling of that railroad down there being built by those captive Irishmen. Those semislaves.

He's recognizing that the railroad means something sort of damaging about us all and he goes down and looks at the shacks of the pitiful Irish and has some compassion and some hostility to their presence and the meaning of what they're on about.

He says we think we ride on the railroad but the railroad rides on us. They lie us down and lay the sand across and the ties and rails run smoothly over us. The railroad's hardly been there for 15 minutes and he's already got the point.

Something else about the law is problematic too. Whose side is it on? IT's not that nobodyh notices that there are sides.

IT's not that nobody notices that codes will make decisions about whose in charge. The very hope in some way is that they can make them cleanly. That there's a gadget for making those decisions. That there's a tool that you can use to sodder this thing all together. That there's a way you can make good coherent peaceful sense of it and keep order in France.

The problem is that you can't. There isn't any tool that you can use. There's no way to bind it up in one great big code that covers it all because half of it says freedom and the other half says slavery. They say it more and moer all the time. They're not moving closer. They're moving further apart.

The politics of the common man in the North begins to be about free soil, free labor, and free man. And the more that a working man asks himself what he doesn't want to be, the more he answers slave. An answer which was the preogative of the aristocratic Virginian in the 18th c. Nobody was more concerned with freedom and the avoidance of slavery than the VA of the 18th c - the male white one I mean. He kept talking about slavery. It was constantly on his mind. We're not going to be slaves to this or that. His view of the empire, his view of his own role, were most important thing was he was not going to be a slave. Boy did he know.

But now, that question who is a freeman is being asked by laboring men and they are living in the north and they are distinguishing themselves from a threatening condition. Not suprisingly.

They don't want to compete with labor that can be dismembered because the race to the bottom in working conditions looks poor to them.,

Which means no just that there have to be jobs for freemen in a free society but there have to be lands for free men to move to.

Urban radicalism is going to be more and more about the right to land. More and more about the question of the closure of the working man in space which means that that free soil idea is going to get bigger to him.

And there is freedom's ferment. There is the graham cracker and the plural marriage and the Brook farm and the ? communes and utopias that ocme on. There's all that seeking perfection in the perfectable society and more and more people are coming to the recognition that whatever that means it can't mean slavery.

And so you've got a bunch of people beginning to understnad that their view of the christian millenium is that it's coming with a sword of fire and that sword strikes at slavery and there's no way you can paper that over. There's no way you can codify around it. You can codify the civil procedure of NY. Maybe you can codify the commercial law of the society. Joseph Story's clearly got the view that if you really want to deal with the holder in due course doctrine or the obligation of the taker for value of a promissory note, you might as well cite some English cases and make some federal common law. There's no monopoly of technological invention on the side of the code.

But the very idea of the code, that it's accessible to all and reachable by all and promises peace and good order in society, you cannot have that because there is slavery.

And the process of living in an empire partly slave and partly increasingly militantly free, that's going to require a great deal. Of course, you can't even think about free speech in such a world. You can't think about the free mailing of printed material in such a world. In the end on one side of that boundary you're going to have to decide that it's a crime to teach a person to read.

On the other side of that boundary, you're going to have to come to the conclusion that you're not willing to stand and watch as armed force is used to drag a man away from his family and back into slavery.

You're going to have to allow yourself to watch as your neighbors are kidnapped in the street and you're not going to do it. Not if you believe in law you're not. Not if you believe in justice you're not. Not if you believe in freedom. Not if you blieve in we the people made this union because you're goingto have begun to lose the idea that the hting called people excludes slaves.

This does not necessarily mean that the thing called people includes black people. If you're an irish laborer in NYC in 1840 you probably don't think that. Come the middle of the civil War you're going to be quite unwilling to be drafted to go to fight for black people and you're perfectly capable of starting a race riot in NYC but you believe in free soil, free labor and free men.

becuase you don't believe in being forced to compete with slave labor for your living.

So self interest teaches you a concern with freedom which is in no real sense a threat to white supremacy but is a deadly threat to the system of slavery. And the law forces itself to confront these questions all the time.

But everywhere that there's a conflict of laws or a change of jurisdictions or a movement of persons, matters can become difficult.

And allow me to point out that if you take a boat from Charleston, SC intending to get to Galvaston, TX, you will stop first in NY.

See ya in a bit.


Webs Webs

r1 - 21 Dec 2009 - 22:56:17 - IanSullivan
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