The Nature of Litigation in Early New England. (Correspondence)
Priest, Claire, The Yale Law Journal
If Bruce Mann had written Neighbors and Strangers as he describes it in his reply, (1) he might have been right in stating that I mischaracterized his work. But instead his reply presents a version of legal change revised to write out the central aspects of his theory that I critiqued in my Article. (2) I used the term "modernization theory" as a simple way of referring to the underlying thrust of Neighbors and Strangers that, in the early eighteenth century, the legal system in colonial Connecticut transformed in response to an expanding economy and other changing social conditions by becoming more formal and predictable and by providing more uniform decisions, thereby creating conditions for a more commercial and market-oriented society. (3) In one passage, for example, Mann states:
An expanding economy requires that individual transactions be governed by generally applicable rules. Because of the sheer number of such transactions and the distances they may involve, they have to be conducted in a routine fashion. Their form and the legal rules that direct them must be uniform and calculable. Rational economic exchange requires the assurance that like cases will be treated alike. To provide that assurance, general rules override the individuality of particular cases and force them into a common mold. Formal requirements that limit litigation to the instruments themselves and restrict appeals homogenize the underlying transactions and give them a uniform, predictable legal character. (4)
This passage and others like it (5) portray law and economy as functioning in a tight, mutually reinforcing, and evolving relationship in a context of economic expansion. In the passages of my Article that Mann characterizes as reducing his argument to the claim that "judges, acting instrumentally to promote economic growth, engineered the legal changes," (6) my intention was to show that Mann focuses on local sources of law--on the "law" emerging endogenously out of relationships between individuals within local communities--through resolution of disputes in the courts by judges.
My Article presents a starkly different view of eighteenth-century law by emphasizing the ways in which currency policies enacted by colonial assemblies, mercantilist policies adopted by Parliament and the Board of Trade in England, as well as domestic and international economic conditions influenced the forms in which people transacted and the volume of litigation. Far from the picture Mann presents of increasing calculability accompanying economic expansion, my study shows an economy rocketing between currency gluts and shortages compelling resort to commodity money and barter, with litigation volume careening in response.
More particularly, my focus is the importance of the colonial governments' issuance of the first paper monies to an understanding of debt litigation during the first half of the eighteenth century in New England. In my account, the issuance of paper money, in a society largely operating without coins or other cash, had the potential to lead to greater commercialization, specialization, and less household subsistence, but these ambitions were not realized because of unstable government currency policies. Each colony's annual determination of the paper currency in circulation reflected a struggle within colonial assemblies, which faced pressure from part of the public--often debtors--to issue paper money in greater volume, and conflicting pressure from English and New England merchants who desired a stable currency of high value to satisfy English import debts. The tensions between the elected representative assemblies and the English--representatives of a foreign sovereign promoting a mercantilist agenda--led to policies that created disastrous uncertainty. New England experienced periods of extreme depreciation and periods of currency scarcity in the years 1726 to 1730, 1733 to 1734, and 1738 to 1741, when colonial citizens were forced to revert to barter and commodity money exchange. …