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Story’d Paradigms for the Nineteenth-Century Display of Anglo-American Legal Doctrine

07 Nov, 2015 GENERAL LAW

Story’d Paradigms for the Nineteenth-Century Display of Anglo-American Legal Doctrine


G BLAINE BAKER*


IT HAS BEEN said of Joseph Story that when the history of the Anglo-American legal treatise comes to be written, his name will be conspicuous in it.1 Story’s nine texts on American public and private law, written between 1829 and 1845, collectively went through about 75 editions before the turn of the twentieth century.2 In the two generations that have elapsed since Theodore Plucknett prophesied Story’s centrality to accounts of the treatise as a distinctive form of nineteenth-century legal literature, several careful treatments of the North Atlantic treatise tradition have appeared.3 Those essays have been complemented by a solid biography of Story, and by a handful of shorter works on his extra-judicial writing.4 There has also been a groundswell of scholarship that deals with specific English, Canadian, and American legal treatises, which has typically drawn on authors or texts that marked the last decades of the nineteenth century as the zenith of Anglo-American treatise-writing in law.5 Story has been a kind of brooding omnipresence in that secondary literature, which has taken cues from a revitalised history of the book.6 But his monumental set of treatises has not yet attracted detailed scholarly attention, individually or collectively.


This article is not intended to fill that large historiographical gap. But it will offer a tentative assessment of Story’s role in shifting trends in the production of early- and mid-nineteenth-century Anglo-American legal literature, and suggestions about what he intended his treatises to do from epistemological, pedagogical, political and commercial points of view. If there are brooding omnipresences in those accounts, they are natural science, professional consolidation, federalism and economic subsidisation.


Story himself thought that his 1834 Commentaries on Conflicts would be his ‘best law work’. His son (and perennial editor) William Wetmore Story reported that ‘none of [my father’s] works interested him like Commentaries on Conflicts’, and American Secretary of State Daniel Webster opined that that text was ‘regarded by the judicature of the world as the great book of the age’. From beyond the United States, longtime attorney general and premier of Ontario Oliver Mowat said that Story’s ‘able work on the Conflict of Laws has a world-wide reputation . . . and it will probably have no rival for many years to come’.7 Commentaries on Conflicts will therefore provide a platform for this study. That book’s epistemic construction and its style of presentation, together with its author’s goals for it, will be emphasised. Commentaries on Conflicts’ doctrinal content is not a primary subject of this essay, but it is difficult to reflect on the form of Story’s texts or that of any other legal treatise without incidental consideration of the principles stored in them and publicised by them.


Broad-brush anticipation of this study’s conclusions seems appropriate at the outset. At his best, Story was a master of exhaustive description and of consequentialist reasoning. He was also a gifted technician with a knack for seeing the architectonic structure of legal systems. At worst, Story tended to verbosity and hyperbole, and readily adopted jurisprudential buzzwords of the day despite his apparently incomplete sense of their meanings. Perhaps most relevant for current purposes, Story engaged in limited reported reflection on scientific epistemology in law or the theory of juristic knowledge that his trademark treatises epitomised. His animating insight was that the more abstractly a legal rule was expressed, the more likely that rule was to reflect or promote uniformity of intercolonial, interstate or international practice. That perception effectively led to an instrumentalisation in law by Story of scientific method, terminology and purposes.


I. ABRIDGING, CONSOLIDATING AND CODIFYING


Story came to legal treatise-writing through the production of digests of case law and consolidations of statutes, and by way of private-law codification. He also prepared several derivative English texts prior to his assumption in 1829 of a law school teaching position endowed by Massachusetts abridgement author Nathan Dane that required the production of treatises to facilitate Harvard’s emergence as a national institution of professional consolidation. Story therefore lived an accelerated version of the nineteenth-century development of Anglo-American legal literature.


Story’s unpublished 1809 ‘Digest of Law’ was conceived by him as an American supplement to John Comyns’ widely-used Digest of the Laws of England, an ‘institutional work’ that was representative of the prevailing seventeenth-andeighteenth-century British genre of enumerative surveys of common-law information.8 Several other abridgements of that sort were prepared for use in the North American colonies or states, and that local literature has begun to attract insightful commentary.9 Those institutional works generally survey juridical information comprehensively, but without significant inductive generalisation, synthesis or other forms of abstraction. Their authors normally aspire to treat the entire sweep of budding ‘national’ law, and topical divisions are often ones like persons, estates, crimes and courts.10 Within those divisions the subcategory of property tends to be dominant, and particularistic ‘forms of action’ or social functions imposed by the operation of law provide a dense array of alphabetically-organised subheadings.11 That species of Anglo-American legal literature most closely resembles law students’ and practitioners’ ubiquitous commonplace books, which were sometimes forerunners of published digests or abridgements.12


It was therefore a modest step for Story to move from his 1809 ‘Digest’ to the American annotation of three English legal treatises in the next couple of years.13 As was the norm in that period, those texts dealt with small corners of topical fields, and were organised around principles that were few in number and all-embracing in character. Generalisation and systemisation of the essential characteristics of civil liability into an all-inclusive Anglo-American codal or near-codal treatise literature would not be attempted for another two or three generations. But already in those derivative English texts, Story was engaging the treatise’s distinctive features of objective and systematic treatments of limited fields of legal knowledge that were said to have inherent qualities of internal unity, and especially induction from specific events to abstract, black-letter rules.14 The reproduction of English law books with North American annotations was a lucrative practice for legal publishers and became legion as the nineteenth century advanced, especially in respect of British North America.15


Perhaps most significant in Story’s transition from technical ‘case-law compiler’ to abstract ‘legal scientist’ was his 1812 appointment, with William Prescott and Nathan Dane, to undertake an unprecedented official consolidation of Massachusetts’ statutes.16 That consolidation, which involved much more deletion, regrouping, rewriting, and retitling of legislation than had been attempted in earlier ‘revisions’ of colonial laws, was used as a model for similar exercises in New York (1828), Nova Scotia (1851) and New Brunswick (1854). The products of those consolidations prompted Chairman René-Édouard Caron of Lower Canada’s Civil Code Commission of the 1860s to remark that they ‘closely resembled codes of law’.17 That was so because pioneering North American statute consolidations were typically set up in ‘books’ and ‘chapters’, in topical clusters that often followed the nomenclature and sequencing of late-eighteenth and early-nineteenth-century European private law codes. The watchwords of that form of legal-information packaging were order, synthesis and concision, descriptive terms that underline the epistemological similarities of codes to consolidations of statutes and help to emphasise their common roots in the contemporary natural sciences.18 It is regrettable that little scholarly attention has been addressed to nineteenth-century North Atlantic attempts at legislative consolidation.19 The treatise was the product in decisional law of epistemological imperatives similar to those that informed early consolidations of statutes.


Story was subsequently appointed chair of the Massachusetts Commission on the Codification of Private Law, a governmental body that was active in 1836 and 1837 (after the publication of four of his treatises), and reported to the state legislature in favour of moderate, nationally-coordinated codification of local law as a way of addressing the issue of domestic legal pluralism.20 That stance was consistent with Story’s longstanding extra-legislative support for codification of the fields he thought ripest for generalisation and systematisation, namely commercial law, criminal law and procedural law.21 In any case, Massachusetts’ abortive codification project was part of an emergent Anglo-American preoccupation with codes as a way of doing legal science.22 While the work of parallel civil code commissions in neighbouring New York and Lower Canada has attracted considerable academic attention, the efforts of Story and his Massachusetts co-codifiers have not.23 That difference may be attributable to a measured and diplomatic attitude toward codification on Story’s part, a posture that contrasted with the more flamboyant, persistent and controversial approach of leading New York codifier David Dudley Field. It may also have to do with Story’s ambidextrous attitude to legal federalism: Story the constitutional-law judge on the First (New England) Circuit Court of Appeal and the Supreme Court of the United States from 1811 to 1845 provided through case law the jurisdictional space for an expansive and uniform federal common law of commerce, admiralty, and diversity of citizenship; Story the publicist capitalised on that opportunity with seminal legal treatises; and, Story the Harvard law professor recruited entering students from Boston’s hinterland and spread republican legal values throughout the expanding interior of the United States in the minds, hearts and luggage of returning graduates.24 It is, therefore, unsurprising that modern students of Story have tended to focus on his judicial and educational activities, rather than on his actions as a legislative delegate on statutory consolidation and private law codification commissions. That work was, however, crucially important to Story’s choice of media for the extended expression of his economic and other developmental policies.


II. LEGAL DISCORD


Story’s pursuit of the commercially and politically unifying potential of federal common law and national legal treatise literature was directly informed by his involvement in the Anglo-American codification movement. In structure, his treatises are near-codes, written around general principles presented as rules. Commentaries on the Constitution, for example, was constructed from 19 maxims of ‘codal’ interpretation.25 In one of his more prominent Encyclopedia Americana entries, Story provided 21 principles for the application of private law.26 And Commentaries on Conflicts is comprised of 645 consecutively-numbered paragraphs that provide individual choice-of-law rules and thumbnail glosses on them.


Story’s models for that organisation were the late-eighteenth century’s spate of European doctrinal texts, rather than the legal literature of his own Anglo-American tradition:



There is a remarkable difference, in the manner of treating juridical subjects, between the foreign and the English jurists. The former, almost universally, discuss every subject with an elaborate, theoretical fullness and accuracy, and foreign jurists ascend to the elementary principles of each branch of the science. The latter, with few exceptions, write what they are pleased to call ‘practical treatises’, which contain little more than a collection of the principles laid down in the adjudged cases, with scarcely an attempt to illustrate them by any general reasoning, or even to follow them out into collateral consequences. In short, [texts by English jurists] are little more than full Indexes to the Reports.27


Story also used continental treatises for rhetorical advantage. A single page of Commentaries on Conflicts, for example, has three lines of French and six of Latin, together with quotations from Louis Boullenois, Achille Rodemburg, Paul Voet, John Voet, Charles D’Argentré and Ulricus Huberus.28 The key point, however, relates to Story’s desire to ‘ascend to the elementary principles of each branch of [legal] science’ in order to augment the prevailing Anglo-American practice of scholarship in law which turned out works that were ‘little more than full Indexes to the Reports’. It is precisely that penchant for generalisation, synthesis, abstraction or inductive reasoning that is the hallmark of a legal treatise-writer.


All of Story’s treatises were written at Harvard Law School as a condition of his occupancy of the Dane Professorship. Dane’s endowment stipulated that linkage of pedagogy to scholarship and statesmanship, and Story himself regularly mused publicly about the unhappy implications of a sparse Anglo-American legal literature for ‘scientific’ education in law.29 College-based instruction in pre-Revolutionary and antebellum American law had occurred without nationally-oriented texts as teaching tools, and Charles Viner’s endowed chair in law-teaching at Oxford University that was initially held by William Blackstone had not emphasised scientific or imperialistic approaches to law.30 Story’s treatises were, however, intended to be more than classroom aids. They were conceived as motivational tracts on a system of political and economic democracy that placed lawyers administering common-law and constitutional protections of private rights at the centre of an American polity closely linked to consolidated commodities and credit markets. The treatises, the Law School, and the federal courts were thus embraced by Dane and Story as sibling institutions that would help to promote uniformity of private law, nurture a nationally-oriented bar, assist in securing a leading, non-partisan role for lawyers and courts in the consolidation of American domestic policy and help to cement the Republic along nationalist lines. Those pursuits became Story’s legacy to the Anglo-American legal tradition, a potent but sometimes under acknowledged bequest. His publishers certainly thought that Story’s statements of law and conception of its social role remained saleable through much of the nineteenth century, evidenced by their production of more than six dozen editions of his treatises.


Story regarded constitutional divisions of power, intercourt rivalry and inter-jurisdictional legal pluralism as related challenges that existed at the junction of governmental law, judicial law, and public and private international law. It was no accident, therefore, that his Commentaries on Conflicts was published on the heels of his Commentaries on the Constitution and just before his Commentaries on Equity Jurisprudence.31 Story thought he was dealing as directly with conflicts issues when he adjudicated, taught or wrote about division-of-powers cases under the federal admiralty, commerce, or diversity headings of the Constitution as when he dealt with interstate choice-of-law problems in Commentaries on Conflicts, and the private-law lines between states were in many ways as firm as those among nations.32 The same is true of Story’s judicial applications of the federal Judiciary Act of 1789, most notably Swift v Tyson, in which he set about reigning in the unco-ordinated activities of state courts.33


Interstate choice-of-law doctrine was a complementary aspect of Story’s wholistic conflicts thought, and the controversies it spawned in antebellum America were regarded as novel ones. Optimal security, and thus sovereignty, for interstate traders was thought to require that private law be uniform, and an important step toward the integration of American’s common laws involved persuading states to compromise their domestic law when presented with private rights acquired out-of-state. Story’s themes in Commentaries on Conflicts were therefore the circumscription of local governmental power by private-law unification, the indispensability of choice-of-law rules to commercial nationalism and the role of popular consent in notions of state sovereignty. Sovereignty and vested rights were effectively the controlling topics in a book about legal pluralism and private international law.


In his inaugural lecture as Dane Professor, Story announced that he would:



. . . venture far more than has been usual with publicists, into an examination of those general principles of jurisprudence which effect the contracts, govern the titles, and limit the remedies of the subjects of independent powers, who acquire rights or contractual obligations, or succeed to property, or are in any measure subjected to the municipal law in a foreign country. This will include a variety of delicate and interesting topics belonging to the operation of foreign jurisprudence or, as it is sometimes called, the lex fori and the lex loci.34


That new attention to the ‘lex fori’ and the ‘lex loci’ was said to be timely because the Supreme Court of the United States had to cope with ‘the jurisprudence of twenty-four states, essentially differing in habits, laws, institutions, and principles of decisions’. Story was similarly concerned about ‘systematical legal diversities’ that prevailed among the American states.35 That state of affairs meant that:



To no part of the world is [choice-of-law doctrine] of more interest and importance than to the United States, since the union of a national government with that of twenty-four distinct, and in some respects independent states, necessarily creates very complicated relations and rights between citizens of these states, which call for the constant administration of extra-municipal principles. This branch of public law may be fitly denominated private international law, since it is chiefly seen and felt in its application to the common business of private persons, and rarely rises to the dignity of national negotiations or national controversies . . . [Q]uestions upon the conflict of laws of different states are the most embarrassing and difficult of decisions of any, that can occupy the attention of courts of justice.36


Story concluded that if American common law failed to provide ‘scientific’, ‘precise’ and ‘symmetrical’ choice-of-law rules to govern inter-jurisdictional commerce promptly, it would be:



Impractical for [states] to carry on an extensive intercourse and commerce with each other. The whole system of agencies, purchases and sales, credits and negotiable instruments, rests on this foundation; and the nation, which should refuse to acknowledge the common [conflicts] principles, would soon find its whole commercial intercourse reduced to a state, like that, in which it now exists with savage tribes, with the barbarous nations of Sumatra, and with the other portions of Asia, washed by the Pacific.37


In other words, doctrinally malingering states were at risk of becoming truly alien and uncivilised. Security for interstate traders required that private law be as uniform as possible, and an important step toward that goal involved persuading states to compromise their local law when presented with private rights acquired out-of-state:



. . . Without some common principles adopted in this regard there would be an utter confusion of all rights and remedies; and intolerable grievances would grow up to weaken all the domestic relations [of the states with each other], as well as to destroy the sanctity of contracts and the security of property.38


Judicial protection of ‘the sanctity of contracts and the security of property’ was a mission Story urged on his fellow jurists so frequently that his use of those catch-phrases literally defies counting. His standard prescription for that task was ‘to build our commercial law, as much as possible, upon principles absolutely universal in their application’.39


Safeguarding contractual entitlements and property followed directly from Story’s valorisation of the sovereignty and vested rights of individuals. Citizens and not states were the building blocks of his Republic, and institutions like the Constitution and the federal courts were said by him to have been conceived as the primary guardians of patrimonial and contractual entitlements.40 Story’s choice-of-law rules echoed the premises that animated his constitutional jurisprudence. The aim of those rules was to secure the rights of individuals operating across state lines in a national market, and the promotion of comity among states was a secondary concern. Story routinely called interstate conflicts problems ones of ‘mixed rights’ or ‘harmonisation’, rather than disputes about mixed laws or comity. And he regularly characterised the juristic sources of interstate and international threats to ‘private rights and contracts’ as ‘despotic powers’.41 In some ways, Commentaries on Conflicts is a heuristic, quasi-constitutional tract on the correlative scope of private and public sovereignty, written through distinctive and highly technical legal doctrine. It bears recollection that that book was authored during a period of increasingly virulent states’-rights agitation that nationalists like Story regarded as a threat to the new Republic.42 Story was, in effect, engaged in the invention of American nationalism through law and, however New Englandesque its commercial and republican ethos, his legal nationalism was extroverted, optimistic and visionary.


III. COMMENTARIES ON CONFLICTS


Commentaries on Conflicts began as a 557-page monograph, in 17 chapters.43 It is prefaced by a four-page ‘bibliographical note’ listing ‘some of the more important authors whose works have been cited’ that includes 42 European scholars and three Anglo-American jurists. Its ‘Index to Cases Cited’ contains about 300 United States decisions and another 200 English ones (some of which are not conflicts cases), judgments that Story thought were too often ‘loose and scattered’ or ‘provincial and unusual’.44 But it was important for him to compile that case law exhaustively to showcase legal empiricism at work, and to fortify the doctrinal generalisations that he synthesised from those raw materials. Story’s treatise was also intended as a register of interstate and international custom, presumably because those kinds of collections were important products of prevailing methodological practices in the natural sciences.


Bibliographical material is followed in Commentaries on Conflicts by brief substantive sections that contain introductory remarks and general maxims. Two succeeding chapters deal with the connecting factor of domicile and the acquisition of juridical personality through the law of capacity. The following nine chapters, the core of Story’s interstate choice-of-law scheme, are structured around legal relationships: contractual; proprietary; testamentary; and relationships of agency. That doctrinal architecture was comparatively novel, since most of the European texts to which Story referred were organised by categories like personal, real and mixed rights. His structural reliance on private-law relationships was consistent with his overriding concern about personal sovereignty and entitlements. The last four chapters of Commentaries on Conflicts deal with the adjectival law of jurisdiction, foreign judgments and evidence. Statutory and decisional law is treated on all-fours throughout the text, apparently because Story regarded most forms of normativity as will-based and therefore vulnerable to legislative, judicial, contractual and customary variation from one place to another in accord with local preferences.


Story devoted the first two dozen pages of Commentaries on Conflicts to a subject that ‘properly belongs to a general treatise upon public law’ to lay the groundwork for 500-odd pages that follow and that deal with private international law through the medium of approximately 70 code-like choice-of-law rules.45 It was the ‘municipal regulations’ of each state or nation expressed in black-letter conflicts rules, rather than maxims of public international law, that were ultimately to be used deductively to determine on a case-by-case basis when and how much out-of-state law would be applied. One might therefore ask why Story prefaced an enumeration of six dozen choice-of-law rules that typically allow forum courts little discretion to ignore prejudicial foreign laws with a discussion of international comity ‘which constitute[s] the basis, upon which all reasonings on the subject must necessarily rest’ that obliged forum courts to apply out-of-state laws only ‘so far as they do not prejudice the power or rights of other governments, or other citizens’.46 The answer may be found in the fact that that analysis was introduced with sleight of hand by Story through three ‘axioms’ of public international law:



every nation possesses an exclusive sovereignty and jurisdiction within its own territory . . . no state or nation can, by its laws, directly affect, or bind property out of its own territory, or persons not resident therein; [and] . . . whatever force and obligation the laws of one country have in another, depends solely upon the laws, and municipal regulations of the latter, that is to say, upon its own proper jurisprudence and polity, and upon its own express or tacit consent.47


Folding a pioneering Louisiana essay and a leading Massachusetts judicial decision on the conflict of laws into his axiomatic reasoning, Story then provided a pithy statement of private international law policy, also in maxim form:



the true foundation, on which the administration of [private] international law must rest, is, that the rules, which are to govern, are those, which arise from mutual interest and utility, from a sense of the inconvenience, which would result from a contrary doctrine, and from a sort of moral necessity to do justice, in order that justice may be done to us in return.48


Story’s implicit claim was that that maxim, like most others in prominent North Atlantic legal traditions of-the-day, was generalised from widespread state practice.49 But he had to acknowledge governmental sovereignty as an overarching value, however strategically or obsequiously, before proceeding to its modification through conflict-of-law rules.


Consensualism played a role in Story’s conception of interstate and international relations that was similar to the place contractualism occupied for him in interpersonal affairs. The application of choice-of-law rules involved states waiving a portion of their otherwise exclusive jurisdiction over legal controversies within their territory to courts administering private international law in order to secure, in exchange, protection for the mixed private rights of their citizens doing business across political frontiers. Story’s choice-of-law doctrine therefore amounted to a kind of supranational constitution that simultaneously limited the authority of forum courts presented with interstate conflicts, empowered those courts to apply extraterritorial private law and told them how to exercise that extraordinary jurisdiction. Because international sovereignty meant that no nation had an inherent obligation to yield to the laws of another and that none had an intrinsic right to give its laws extraterritorial effect, the express or tacit consent of countries was required for domestic laws to have extrajurisdictional force.50 That acquiescence to choice-of-law principles was found by Story in the articulation by publicists of customary conflicts norms, in the practice of nations evidenced by the work of their courts and ‘by silent adoption [of] a generally connected system’.51 Without such a ‘voluntary and mutual annihilation of sovereignty’, represented by the adoption of black-letter, choice-of-law rules, ‘the most serious mischiefs and most serious conflicts would arise’, ‘there would be an utter confusion of all rights’, and states would have failed to act for their citizens from ‘an enlarged sense of national duty’.52 The concepts of statal and national sovereignty prevented Story from trumpeting the universality of private rights, but circumscriptions of sovereignty in the interest of securing the expectations of cross-border traders could be achieved with appropriate conditional inquiries into interjurisdictional comity, broad state practice, mutual commercial convenience and scientifically-oriented legal uniformity.


IV. PRINCIPLED POLICY IN CHOICE-OF-LAW


Practicability suggests focusing on a cluster of representative choice-of-law rules from Commentaries on Conflicts, rather than attempting treatment of all six dozen of them, or even trying for an assessment of a sizeable cross section of those rules.53 Commercial law was Story’s ‘favourite department’ of legal studies, and he wrote extensively about such special contracts as mandate, partnership, loan, insurance, charter party, hire and bailment.54 His only scholarly treatment of domestic contract law at-large was a substantial entry for Francis Lieber’s Encyclopedia Americana, but he assisted his son William in the 1844 preparation and publication of a first comprehensive Anglo-American contracts treatise.55 In view of those interests, it is unsurprising that Story’s chapter on ‘Foreign Contracts’ (at over 100 pages in length) is the single largest component of Commentaries on Conflicts by a substantial margin. When his chapters on real and personal property, which also have to do mostly with contractual exchanges, are added, the conclusion follows that over half of Story’s conflicts treatise is about the law of exchange transactions. Indeed, ‘Foreign Contracts’ in Commentaries on Conflicts deals primarily with theoretical issues in domestic contract law and in a complementary fashion with choice-of-law rules. That emphasis strongly suggests that Story’s choice-of-interstate-contract rules were extrapolated from Anglo-American law’s emerging mandate to enforce promissory expectations by converting them into proprietary entitlements.56


The dilemma to which Story’s choice-of-law rules in contract were addressed was how to protect personal autonomy and bargains expressive of freely-willed market choices when:



Persons, capable in one country, are incapable by the laws of another; considerations, good in one, are insufficient or invalid in another; the public policy of one permits or favours certain agreements, which are prohibited in another; the forms prescribed by the laws of one, to ensure validity and obligation, are unknown in another; and the rights acknowledged by one, are not commensurate with those belonging to another . . . Unless some uniform rules are adopted to govern such cases (which are not uncommon), the grossest inequalities will arise in the administration of justice between the subjects of different countries in regard to such contracts . . . Innumerable suits must be litigated in the judicial forums of these countries and provinces, in which the decision must depend upon the point, whether the nature of a contract should be determined by the law of the place, where it is litigated; or by the law of the domicile of one or both of the parties; or by the law of the place, where the contract was made.57


Paraphrasing Story’s well-known dissenting dictum on the contracts clause of the American Constitution from the Charles River Bridge case, he believed that if a state means to invite its citizens to enlarge interstate commerce there must be an implicit pledge by that state in the form of its subscription to uniform conflicts rules that contractual entitlements will be held inviolate.58 Story was surrounded by evidence that interstate traders balked at the prevailing pluralistic character of the United States’ private law, resistance that was apparent in longstanding reliance on contractual choice-of-law and choice-of-forum clauses.59