Sunday, January 14, 2007

Americanization of the Common Law

Last week, J.L. Bell at Boston1775 said that he had not read William E. Nelson's Americanization of the Common Law: The Impact of Change on Massachusetts Society, 1760-1830 because he expected that, since he was not a lawyer, he would not have the necessary background. This has been gnawing at me. Professor Nelson's book offers some brilliant insights, and it is a shame if historians are avoiding it.

It may be a historian with no legal training would not understand parts of the book, or rather find portions of insufficient interest to be worth the investment of time and effort necessary to master them. Nonetheless, I think the book is worth reading, even if you skim portions.

Let me describe briefly one way in which Americanization really deepened my understanding of colonial political culture. The Massachusetts legal system was built almost entirely on juries. No one could be criminally convicted, or held civilly liable, unless a jury said so. This contributed to the fact that British rule over Massachusetts was singularly weak. Britain could pass whatever laws it wanted, but they could be enforced only through Massachusetts juries. This gave rise to the possibility of "jury nullification", the phenomenon of juries refusing to convict or find civil liability because they refuse to follow the law.

We have jury nullification occasionally. Think of the OJ case, where the jurors refused to convict OJ despite overwhelming evidence of his guilt. However, today jury nullification is rather rare, because we have built into the legal system a number of procedures that are designed to minimize it. Among other things (and in no particular order): the judge presiding at a trial instructs the jurors, usually in great detail, as to what the law is and tells them they must follow it; lawyers are not permitted to tell jurors what the law is or that it is different from what the judge says it, nor can lawyers argue to juries that they can or should not convict even if the judge's instructions suggest that they should (that is, lawyers may not tell or suggest to juries that they have the power of jury nullification). There are also various procedural devices that take away cases from juries where the facts are clear (such as summary judgment) or where juries have ignored the evidence (motions for new trials or judgment notwithstanding the verdict).

Eighteenth Century Massachusetts, on the other hand, had a legal system that had jury nullification built into its core. Trials were presided over by multiple judges, who often gave conflicting legal instructions, or instructions that were so vague and general as to be virtually meaningless. Lawyers routinely argued the law as well as the facts -- that it, they were in effect free to tell jurors that the jurors had absolute discretion to decide that someone was not guilty or not liable. There was virtually no way to avoid a jury trial or overturn a jury verdict after it was rendered.

In other words, the law on a day-to-day basis was whatever local juries said it was. This in turn meant that British rule was extraordinarily weak. If a law was unpopular, as a practical matter it would not be enforced. Conversely, the discretion of juries reinforced community pressure and customary, local rules of conduct.

Professor Nelson's book is filled with such revelations. For someone steeped in colonial and early 19th Century American history, I heartily recommend it. Again, you may wind up skimming some portions, but I think you'll still find it valuable.

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