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A Province of Jurisprudence?: Invention of a Law of Constitutional Conventions

07 Nov, 2015 GENERAL LAW

A Province of Jurisprudence?: Invention of a Law of Constitutional Conventions


ROMAN J HOYOS*


The plague is met by order; its function is to sort out every possible confusion . . . Against the plague, which is a mixture, discipline brings into play its power, which is one of analysis.


Michel Foucault, Discipline and Punish, 1977


IN HIS BRIEF essay on the treatise literature, Morton Horwitz suggested that the first appearance of legal treatise marked the ‘crystallisation’ of an area of law.1 Horwitz did not develop either the idea of crystallisation or first-ness in any depth, and these ideas remain under-theorised. But they do suggest something important about changes in legal consciousness. Even understood in terms of legal consciousness, though, the parameters of crystallisation are not entirely clear. What does it mean, for instance, for an area of law to crystallise? What exactly is being crystallised? And what are the purposes and consequences of crystallisation? There are also important questions about first-ness worth examining. What, for instance, qualifies as a ‘first’ treatise? Does it entail developing a new area of law, an area implicit or inchoate within a larger subject, or something else entirely? Were first treatises simply ‘firsts’, or was there something more significant at work? In this chapter I want to suggest a way to begin to conceptualise this idea of crystallisation, one that centres around the idea of ‘order’.


To get at this idea, I start by examining some first treatises through the lens of Joel Bishop’s The First Book of the Law (1868). Bishop was described by some of his contemporaries as ‘the foremost law writer of the age’ because of his prolific writing.2 But his method and theory of treatise writing was concentrated in The First Book, a treatise that was simultaneously about legal education and jurisprudence. By 1868 the treatise had become a major component of American law. Just how important this development was can be seen in a brief comparison between Bishop’s work and David Hoffman’s. Hoffman’s A Course of Legal Study (1817) was the first attempt to offer guidance to legal study.3 Hoffman, writing just before the flowering of the treatise tradition in the United States, urged students to range wide in their studies, from moral and political philosophy to works on civil law to constitutions. But it was ‘folly’ ‘to hope from them particular and definite knowledge’ of law.4 By contrast, Bishop, writing in the midst of decades of treatise writing, emphasised the treatise as the central tool for the study of law, as treatises were written by a ‘class of legal persons’ whose special role it was to impose order on the law by identifying the reasons that constituted law. Treatise writers made law legible and understandable to both students and practitioners by ‘rationalising’ and ‘systematising’ it. That is to say, they sorted through cases and doctrines to identify major principles undergirding the law.


This process of ‘rationalisation’ and ‘systematisation’ entailed what Mark Neocleous has called, in a somewhat different context, the ‘fabrication of order’.5 Two things are important to note about Neocleous’ idea. First, ‘order’ refers to the central concern of police. Second, Neocleous emphasises the older, constructive definition of ‘fabrication’. Conceived as fabrication, policing appears ‘as an activity rather than an institution, shaping order rather than passively responding to disorder: the fabrication of order’.6 Neocleous was interested in a particular form of order, or more precisely a form of order within the larger sphere of civil society, which he sees as lacking the motive power to be self-generating. Police is thus a tool by which ‘the state fabricates order within civil society’ to prevent its collapse. A police power, then, does not merely maintain order, it has a ‘productive and creative force’.7


But we should not be too quick to dismiss or ignore the more common imaginative definition of ‘fabrication’, as it has a productive and creative force as well. Treatise writers fabricated order in both senses; they were both making law appear as if it was orderly and attempting to make it so. Importantly, the fabrication of order depended first upon the fabrication of ‘disorder’. As part of the construction of their authority, treatise writers had to portray the state of the existing law as disorderly or chaotic. Given the fast growing number of cases, often going in different directions, it was relatively easy for writers to identify drift. But disorder, like order, is at least as much about consciousness as fact. Indeed, the ‘fundamentally irrational’ nature of the common law could be seen as a strength rather than a weakness.8 To see it as irrational, or disorderly, was the epiphany that led to crystallisation. It was this process of the fabrication of dis/order that is, I think, a potentially useful conception of ‘crystallisation’, and should help us to understand more fully the significance of treatises, especially first treatises. Neocleous’ idea of the fabrication of order allows us to see the treatise not only as a text to understand the ‘underlying metaphysics’ of a juridicalised police, but as an act of that police as well. The first treatise, then, was the creation of a field to be policed.


This idea of crystallisation is on full display in John Alexander Jameson’s Constitutional Conventions, which I take up in the second part of the chapter. Jameson’s treatise, the most interesting of the century’s first treatises, has gone largely unexamined by modern historians, lost in the shadows of some of his more famous contemporaries like Thomas Cooley, John Dillon and Christopher Tiedeman. Yet for the 20 years – at least – in which his treatise went through four editions, it was enormously important. My interest in Jameson’s treatise stems from a larger project that I am working on dealing with the history of the constitutional convention, where it plays an important role. But his treatise has much to tell us about the history of the treatise literature as well, particularly as it concerns the themes of crystallisation, first-ness and dis/order. Dis/order in fact was a prominent theme in Jameson’s work. It could hardly be said that there was a ‘law’ of constitutional conventions prior to the publication of Jameson’s treatise. Until the mid-nineteenth-century, there was little thought of the convention as a legal institution at all. In fact, the idea that a constitutional convention was or could be a legal institution would have been deeply controversial prior to Jameson’s treatise. If there was a law of constitutional conventions at all, it was a localised or particularised law, not universal and systematic. This was precisely what made the convention so important; it was an extra-constitutional institution that lay beyond law, one that embodied the people and their sovereignty. Jameson’s success in inventing a law of constitutional conventions was not merely the product of his eloquence or labour, but was due in large part to its timing as well. Written both after and in consequence of the Civil War, Jameson’s work highlights the significance of the first treatise and the fabrication (in the dual sense) of dis/order, and suggests that rationalisation and systematisation must be understood historically. In this case, the use of the convention by the southern states to secede from the Union raised problems about the convention that could be taken seriously in ways that it could or might not 20 years earlier or later. Secession also induced Jameson to be more explicit about his aims than the typical treatise writer, in particular about his goal of imposing law’s authority on the convention, and ultimately the people. Jameson’s treatise then suggests that a great deal more was at stake in treatises than simply the rationalisation and systematisation of law.


I


According to Perry Miller, the common law as it existed in the eighteenth century was no ‘construction of systematic reason: it was a haphazard accumulation of precedents, quirks, obscurities . . . fundamentally irrational by its inherent nature’.9 But it was only after the American Revolution that Americans began to consider seriously the common law’s irrationality. This concern grew out of a number of factors, including a desire to establish an indigenous jurisprudence, one that rested on republican principles, the devolution of a new plenary judicial power on the former colonies, the rapid, often overwhelming, increase in litigation, the multiplicity of jurisdictions, and the publishing of judicial opinions.10 This new legal environment seemed to be outpacing lawyers’ ability to digest or even understand the law. How to organise and make sense of this material was one of the chief legal questions of the nineteenth century. A number of different forms of legal literature emerged to address this issue, including case reports, digests, legal journals, codes and treatises. But by the second quarter of the nineteenth century, the treatise had emerged as the principal tool of organising the law and educating lawyers. This was important as the treatise form gave the writer a great deal more individual authorial freedom to determine the course and content of the law, even as he claimed to be simply ‘stating the law as it is’. This freedom enabled treatise writers to transcend the cases they relied upon to derive general principles upon which law rested, which they did through the fabrication of both order and disorder. In this process, the first treatise was key; it was the moment in which disorder came into legal consciousness to congeal an area of law. By bringing legal drift into view, it could be segmented, regulated and ordered. It is here that Joel Bishop’s work offers a useful starting point, as he offered one of the clearest statements of the treatise’s role in American law and legal development.


Bishop authored treatises on criminal law and procedure, family law, statutory interpretation, contracts and torts. But it was in his treatise on the study of law, The First Book of Law, that he offered a theory of the treatise and treatise writer. ‘There is’, Bishop wrote,



a class of legal persons, whose especial duty it is to give reasons. These are the writers of those textbooks which are called legal treatises, or commentaries on the law. And we have already seen, that the law itself consists, not in the points decided by the judges in the causes coming before them, but in the legal reasons. These textbooks become, therefore, under certain circumstances, authority; and under other circumstances, they are a sort of quasi authority; while, under still other circumstances, very little weight is given them.11


Bishop’s construction of treatise writers as a ‘class of legal persons’ was an attempt to deal with the problem of authority that confronted treatise writers. As AWB Simpson has described, ‘the text-writer, unless he himself is a judge, possesses as an individual no authority derived from the office’.12 His authority lay only in ‘the truth which any such treatise bears’.13 And this ‘truth’ rested on the writer’s ability both to identify disorder in the law and to provide clarity through the development of broad principles. This was not unique to treatise writing. Thomas Haskell has described a similar phenomenon occurring around the same period in the social sciences. ‘Once freed of the dead weight of the marginal practitioner’, Haskell has written, social scientists believed that ‘the general level of science would rise. The authentic man of science would reach his audience without distraction and be able to speak with the authority that he deserved and the truth required’.14 The ‘marginal practitioners’ that were the targets of treatise writers were the lawyers and judges who were responsible for the irrationality of the law.


As a ‘class of legal persons’, treatise writers were particularly engaged in crafting a scientific approach to law, which involved the ‘systematic derivation and application of general principles to make law more intelligible, predictable, and in harmony with republicanism and a market economy’.15 As Bishop explained,



A legal treatise or commentary is an orderly statement of those principles in which the law consists, whether drawn from the reports of law cases, from natural reason, or from any other source; accompanied by such illustrations and references to authorities to render them plain in their application and accurate in their outlines, and settle to the inquiring mind the fact that they are truly the law.16


Importantly, Bishop pointed out, this was the particular domain of the treatise writer, and it was what separated the writer from other legal actors, including judges in particular. In fact, it was in contrast to the judge that Bishop was able to identify the treatise writer’s role and authority. Of course, both judges and treatise writers were engaged in the similar project of giving reasons. And reasons, Bishop reminded his readers, were law. ‘[L]learned and lucid reasons’ may come from judges, in which case, the treatise writer merely quoted and attributed the judge. But in most cases it was a process of ‘weav[ing] what is partly original with him, and partly taken from others, into the fabric of text law’.17 In fact, Bishop doubted judges’ abilities to give good or even sufficient reasons. Whether because they were involved in the day-to-day administration of law or simply lacked the capacity, judges’ opinions were not necessarily dispositive as reasons.


To differentiate the treatise writer from the judge, Bishop devised the point-principle distinction. Judges decided ‘points’, which filled the volumes of reports and digests. But ‘points adjudged’ were only ‘deemed by legal idiots to be the law’.18 They were merely historical artifacts, and could never control future cases. The treatise writer, by contrast, with the cases before him, as well as ‘natural reason . . . or any other source’, looked at the law as a whole to discover principles. A ‘principle’, in contrast to a point, was ‘universal’; it governed past and future cases, and could never be controverted by a case.19 This difference between point and principle was the difference between darkness and truth. Where the judge ‘often grop[ed] in darkness’, the treatise writer, ‘by long and laborious methods’, derived the principles that governed the cases.20 It was this labour that constituted treatise writers as a class and defined their authority. In a world of disorderly law, ‘time and labour’ became crucial to the construction of the treatise writer’s authority. Identifying law as a ‘chaotic mass’, as Horace Gray Wood had put it,21 meant that only someone willing to invest the ‘time and labour’ to sort through it could claim to be an expert on the law. Bishop described the process in the following way:



The writer of a textbook, by long and laborious methods, has brought the cases together, has collected out of them and out of the works of preceding authors such principles as had been already discovered, has himself added such principles as he was able to discover also, has applied his practised mind to the arranging and stating of the principles in the clearest way possible to him . . .22


It was only the treatise writer who took the time to sort through the common law’s irrationality and conjure up order. As an illustration, in his treatise on family law, Bishop included an index entry for ‘Not thought of’, consisting of cases in which the judges had failed to identify principles that Bishop himself had discovered.23


Even a merely competent treatise could elevate a jurist’s status within the profession. Thomas Cooley’s aim in writing his first treatise, for instance, was informed by the fact that he saw ‘the chance to gain in reputation and income by competently performing a necessary job’.24 Yet even a competent job required a great deal of labour. Cooley’s treatise was ‘massive’, ‘pervading the hundreds of cases, principles, and illustration’, which helped both to create a field of law and to establish his authority by putting his erudition on display.25 It was through their labour that treatise writers became ‘discoverers’ of the law, and in that sense ‘just as much entitled to the credit of discovery, as was Sir Isaac Newton for the discovery of the law of attraction in nature’.26


Bishop could not quite bring himself to say explicitly that a treatise made or was law. ‘The true theory’, he wrote, ‘is not that a text-writer can create law’. But the idea was implicit in the point-principle distinction. As Stephen Siegel has explained, ‘Bishop maintained that all decisions not only are limited by their facts, but to their facts’.27 The treatise writer was not burdened by cases and their facts. Indeed, the best writers kept cases in the footnotes, neatly sealed off from principles, preventing them from becoming textual authority. This view was not unique to Bishop. George Ticknor Curtis described the process in similar terms.



It is not the province of any writer to make law, and he must certainly state the law as it is, if he means to have his book respectable and respected. But while his text should exhibit clearly the actual state of the law, he should never forget that he is dealing with principles; that it is his task, to exhibit the doctrine of the law, which is its life; and that unless he does this, his work, however accurately he may have strung the cases together, will be a mere collection of husks, the shell without the germinating principles that lies wrapt in the meat. If, then, he essays in eliminating [illuminating?] the principle of a rule or a decision, tracing it in all its bearings and following it by the thread of analogy into other systems of jurisprudence, in order to ascertain whether it be really part of the general science, and not a local idea, he cannot avoid the expression of his own opinion, to some extent. The study of law is the pursuit of truth; and he who undertakes to express and embody such truth, must occasionally express his own convictions.28


The study of law was not only ‘illuminating’ labour, it was ‘the pursuit of truth’. Perhaps these were synonyms for ‘crystallisation’. But crystallisation was not restatement. If truth was to be obtained, the writer must at some point transcend the cases, and, even if modestly, ‘express his own convictions’ about the true nature of the law.


The fabrication of disorder was an important component of treatise writers’ labour, and the first step in the creation of truth. It was particularly important in first treatises, where the fabrication of disorder was most apparent. Theodore Sedgwick, for example, explained that the ‘variance of opinion’ within courts on issues of damages was so great ‘that it is with great difficulty in many cases that I have been able to do more than state the doubts as they exist’.29 Thomas Cooley explained the relationship between order and disorder in his, the first, treatise on taxation: ‘The decisions in this country on the subject of taxation have become so numerous, that it would be impossible to give abstracts of them all, within any reasonable compass’.30 Thus, he wrote, ‘[t]here are, or should be, general principles underlying all the cases; and an understanding of these will enable one to make use of decisions under the various tax systems, without confusion’.31 Similarly, in his influential treatise on state constitutional law, he wrote that ‘the rapid multiplication of judicial decisions on matters of constitutional law [demanded] some work bringing together those principles in a manner that would enable them to be examined as a comprehensive system. . . .’32 John F Dillon also bemoaned the drift that seemed to characterise the law of municipal corporations that he saw first hand as a judge.



The necessity for a work upon the subject of the present Treatise was so seriously felt by the author when holding a seat on the Supreme Bench of a state where questions relating to the powers, duties, and liabilities of municipalities were presented at almost every term, that he resolved, eight years ago and more, to undertake to supply the want. Although the subject is one of unsurpassed practice importance, since nearly every considerable city and town in the United States is incorporated, no American work upon it has ever appeared. A careful examination of the English treatises satisfied the authority that they were, in a great measure, inapplicable here, and that they fail to cover a large portion of the existing field of the law upon the subject as enlarged by American legislation and practice.33


Dillon used that disorder to subordinate municipal corporations to state authority. Variance, multiplicity and confusion were different forms of disorder that needed policing.


The imaginative side of the fabrication of disorder can be seen in Theophilus Parsons’ maritime law treatise. Parsons explained that ‘[l]ong ago I had become satisfied, that the boundless affluence of existing legal authority, and the rapid increase of the reports of English and American courts, and of other repositories of the law, made it with every passing year, more difficult for a lawyer to possess the means of a thorough investigation, and impossible for him to give the time and labor necessary for such investigation, to the many questions which arise in practice’.34