The Transformation of American Law, 1780-1860 (Studies in Legal History)

378 Pages·1979·20.92 MB·English

by  Morton J. Horwitz

STUDIES IN LEGAL HISTORY
PUBLISHED IN ASSOCIATION WITH
THE AMERICAN SOCIETY FOR LEGAL HISTORY
Editor: Stanley N. Katz
Editorial A dvisory Board
John D. Cushing
John P. Dawson
Lawrence M. Friedman
Charles M. Gray
Oscar Handlin
George L. Haskins
J. Willard Hurst
S. F. C. Milsom
A. Arthur Schiller
Joseph H. Smith
L. Kirivin Wroth
THOMAS J. WILSON PRIZE
The Board of Syndics of Harvard University Press has
awarded this book the seventh annual Thomas J. Wilson
Prize, honoring the late director of the Press. The Prize is
awarded to the best first book accepted by the Press dur-
ing the calendar year.
THE
TRANSFORMATION
OF AMERICAN LAW,
1780-1860
Morton J. Horwitz
HARVARD UNIVERSITY PRESS
CAMBRIDGE, MASSACHUSETTS, AND LONDON, ENGLAND
Copyright © 1977 by the President and Fellows
of Harvard College
All rights reserved
Printed in the United States of America
Library of Congress Cataloging in Publicatz·on Data
Horwitz, Morton J 1938-
The transformation of American law, 1780-1860.
(Studies in legal history)
Includes index.
1. Law- United States-History and criticism.
I. Title. II. Series.
KF366.H6 346'.73'009033 76-26500
ISBN 0-674-90371-4
For Sandra
Acknowledgments
HAPTERS I, II, and VIII and portions of Chapter VI have
C previously appeared in Perspectz'ves z'n A merz'can HzstorYJ the
Universz'ty of Chz'cago Law Revz'ewJ the A merz'can Journal of Legal
HzstorYJ and the Harvard Law ReviewJ respectively.
I wish to gratefully acknowledge the following institutions for
allowing me to use and quote from their manuscript collections: the
Harvard Law School Library, the New York Historical Society, the
Swem Library of the College of William and Mary, the Massachu-
setts Historical Society. Erika Chadbourn, Edith Henderson, and
Margaret Moody of the Harvard Law School Library have assisted
me in many ways. Charles Cullen, of The Papers ofJohn MarshallJ
has also been very helpful.
My secretaries, Mary Malone and Susan Levin, and my research
assistants, John Fisher, Robert Rosen and Stephen Yeazell, were all
extraordinarily giving of their time and ep.ergies.
Several of my colleagues generously read portions of the manu-
script: John P. Dawson, Andrew Kaufman, and Robert Keeton.
Duncan Kennedy, Alfred Konefsky, and William Nelson made
searching criticisms at various stages of this work. Professor Nelson
also graciously shared with me the fruits of his own research into the
Massachusetts court records. Stanley N. Katz, editor of this series,
has given me constant support and help for many years .
. Thanks are due for generous research support from the Russell
Sage Foundation, the Charles Warren Fund of the Harvard Law
School, the American Philosophical Society, and the National En-
dowment for the Humanities. I also wish to express my debt and
Vlll ACKNOWLEDGMENTS
gratitude to Dean Albert M. Sacks of the Harvard Law School for
unwavering support of my scholarly efforts.
Finally, I wish to acknowledge the help given by the Harvard Uni-
versity Press; by Aida Donald, Joan Ryan, my editor, and Nancy
Donovan, who compiled the index.
Contents
Introduction Xl
I The Emergence of an Instrumental Conception
of Law 1
II The Transformation in the Conception
of Property 31
III Subsidization of Economic Growth through the
Legal System 63
IV Competition and Economic Development 109
V The Relation between the Bar and Commercial
Interests 140
VI The Triumph of Contract 160
The Equ£table Concept£on ofContract
£n the E£ghteenth Century
The Rzse ofa Market Economy and the
Development of the W£ll Theory of
Contract
Custom and Contract
Tort and Contract