Law, economy, and society in early New England.

• Author: Mann, Bruce H.
• Position: Correspondence

Claire Priest, Currency Policies and Legal Development in Colonial New England, 110 YALE L.J. 1303 (2001).

Claire Priest makes a valuable contribution to our understanding of the relationship between law and the economy in early New England in her recent article in these pages. (1) By drawing our attention to the obscure but nonetheless important subject of colonial currency policies and by demonstrating a correlation between currency instability and litigation volume, she adds a previously unexplored strand to the generally accepted explanation of how and why law changed in the eighteenth century--an explanation I first put forward fifteen years ago. (2) This by itself would be a worthy accomplishment. Priest, however, aspires to more. She argues that the prevailing interpretation of legal change in early New England is wrong and offers her account in its place. One can hardly deny the appeal of erecting a new edifice rather than adding to an existing one. Unfortunately, Priest misrepresents the scholarship she purports to overturn. More unfortunately still, as a stand-alone interpretation of legal change, her account drains the field of much of its nuance by removing society from the triad of law, economy, and society. In this brief reply, I demonstrate where Priest went wrong and suggest how she could have gotten it right had she not overreached.

The core of Priest's contribution is her analysis of debt litigation in Plymouth County, Massachusetts, from 1718 to 1751, in which she establishes a correlation between rises and falls in the volume of debt litigation and periods of decrease and increase in the supply and value of paper currency. (3) As she recognizes, demonstration of an empirical fact, however interesting in itself, is but a first step toward explaining how and why it occurred and what its significance is. It is here that she goes astray. To Priest, the data prove that "the legal and economic changes of the first half of the eighteenth century in New England did not emerge endogenously out of individuals' obligations, shaped by local conditions and enforced by local courts," but rather from "the effort by colonial legislatures to expand their powers and to gain control over the economy by issuing the first paper currencies and by taxing in paper currency." (4) She argues that previous legal historians have erred by focusing on "judicial decisionmaking" as "the best means of assessing the role of law in economic development" and that this focus has led them to the false conclusion that "judges actively promoted an agenda in harmony with local preferences"--that is, "optimally satisfying the legal needs of local communities." (5) The errant legal historians fall into two camps, each wrong but for different reasons. The first is led by Morton Horwitz, who highlighted what he regarded as the dynamic instrumentalism of nineteenth-century judges by dismissing law in the colonial period as static and bound by the anticommercial values of an agrarian, communitarian society. (6) The second camp is a group that Priest labels "modernization theorists"--primarily Cornelia Dayton and myself. (7) According to Priest, Dayton and I argued that, whereas judges in the seventeenth century "tailored their decisions to individual litigants and to the relationship between the parties underlying the transaction," judges in the eighteenth century "began to apply more formal and predictable legal rules" in response to economic growth, thereby promoting "even further economic development." (8) Our evidence for this, in Priest's characterization, is statistics that show an exponential rise in the volume of civil litigation, attributable primarily to an increase in debt litigation, which we claim "accompanied a process of legal formalization and was a function of economic advance and commercialization." (9) This is the "modernization hypothesis--economic growth leading to greater legal predictability and resulting in exponential increases in litigation" (10)--that Priest purports to disprove. (11) The problem is that this modernization hypothesis is a straw of Priest's creation. It is neither mine nor Dayton's, and it bears little relationship to how we used our data.

I wrote Neighbors and Strangers in part to rescue the legal history of the colonial period from the communal, preindustrial irrelevance to which it had been consigned by legal historians from Roscoe Pound to Willard Hurst to Horwitz, none of whom paid it much attention before dismissing it. I began with a statistical sample of over five thousand civil cases drawn from seven decades of litigation in early Connecticut, which I used to revise the then-standard periodization of legal change in American history by placing early in the eighteenth century many of the changes that Horwitz and William Nelson had attributed to the Revolution and its aftermath. (12) What my data showed was that civil litigation changed dramatically within a relatively short period during the first half of the eighteenth century. Debt litigation changed from a world in which most of the debts sued upon were contracted on book accounts to one in which most arose from formal written credit instruments, primarily promissory notes, and from a world in which most debtors contested their creditors' claims when sued to one in which they did not. At the same time, fewer contested civil cases of all kinds, debt included, were decided by juries and more by judges, and the structure of pleadings changed such that fewer defendants staked their fates on pleas of fact and more on pleas of law. (13)

I argued that some of these changes--those involving debt--were closely tied to the growing commercialization of the economy and to the changing social context of economic relations, while others--pleading and procedure--owed less to shifts in economy or society and more to the tendency of a fledgling legal profession to treat law as an autonomous system rather than as a contingent social process. (14) Taken together, I argued, these changes marked a transformation in the relationship between law and community as the formal legal system grew, in effect, less communal--that is, more formalistic and less accommodating to the vagaries and eccentricities of individual disputes. (15)

Priest reduces my argument to the claims that judges, acting instrumentally to promote economic growth, engineered the legal changes, and that economic growth in turn produced increasing legal modernization, primarily in the two decades from 1730 to 1750, as evidenced by a sharply rising volume of litigation. (16) In truth, neither Dayton nor I imputed any such role to judges, who in fact barely appear in Dayton's book. (17) I did not attribute legal change to economic growth, nor did I pay more than incidental attention to the volume of litigation, let alone regard it as evidence of legal change. And I identified the pivotal period of legal change as the years 1710 to 1720. (18)

Litigation volume is hardly a measure of legal change, which is why I gave it little consideration other than to note that debt litigation increased sharply in the 1730s and 1740s. (19) None of the sixteen statistical tables in the appendix to Neighbors and Strangers tracks litigation volume as its primary purpose. All of them present percentage distributions--whether of forms of debt actions, rates of contest, differences between intratown and intertown actions and among types of towns, kinds of defendants' initial pleas, or modes of decision. (20) The actual number of cases in each table appears only as the statistical "n" to...