Saturday, January 22, 2011

Two by Fernandez on the Antebellum U.S. Bar

Angela Fernandez, University of Toronto Faculty of Law, has posted two quite interesting papers. The first is The Ancient and Honorable Court of Dover: Mock Trials, Fraternal Orders, and Solemn Foolery in Nineteenth-Century New York State:
This article is about a fraternal order operating in the first half of the Nineteenth Century in New York called “The Ancient and Honorable Court of Dover.” This group organized a mock trial, probably in 1834, to prosecute one of its members. A prosecutor was appointed and the President of the group gave a long speech. At issue was whether or not non-members could participate in the trial. After a description of these records and an account of their discovery, this article explains who the individuals involved in the trial were, Jacksonian politicians and lawyers with connections to the Custom House and the Tammany Society in New York City. It then describes what a “Court of Dover” was, asks about what the offence here was, and explores the connections between this group and the most famous “Ancient and Honorable” society, the Freemasons. It argues that the records of a group like this should be understood as a kind of “legal literature” that is best understood in relationship to the notion of “solemn foolery,” a phrase that has been used in connection to the legally-themed theatricals at the Inns of Court.
The second is Tapping Reeve, Coverture, and America's First Legal Treatise:
In his 1816 treatise, The Law of Baron and Wife, Tapping Reeve of Litchfield Law School fame, rejected the Blackstone/Coke maxim that a husband and wife were one person in law. This paper explains how Reeve used his book, his students, and his role as a judge to work against the principle of marital unity, for instance, causing his students to pass a statute in empowering married women to make wills. Reeve’s behavior was typical of ‘Fading Federalists,’ who losing their power in the political realm, turned to law book writing and law teaching in order to continue to press their influence. Reeve’s reasons for rejecting the one-person-in-law maxim are connected to his religion, his own marriage, and conditions that were unique to Connecticut during this period. This localism is ironic as Reeve maintained that his account was a description of English law and not anything specific to Connecticut. It is this pretense to the non-local, not avoided by his rival Zephaniah Swift, that made Reeve fit to be honored in later line-ups like Roscoe Pound’s celebration of the American ‘taught law’ textbook tradition. However, it is important to see that Reeve invoked English law as a way to challenge and contradict it, creating in effect a version of English law for America that no English lawyer would agree with. The strategy in the book was to invoke the authority of the common law while simultaneously challenging and re-creating it. What this paper shows is that the version of American common law the treatise put forward was tied very much to local conditions despite what it formally claimed and disclaimed.
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