quote of the day: legal consciousness in early america

We don't often get to see how laws developed in and around courts (in legal treatises and reporters) trickle down to affect actual working people in the early 19th century. Much rarer to find such evidence in newspapers. But here is a gem, “From the Witness,” The Sun (Pittsfield, MA), 6 Sept. 1806:

I walked near a snug farm house -- everything around wore the aspect of industry and improvement. I saw the aged inhabitant and his family departing from their dwelling -- I saw them turn and take a farewell view, and march away in silent sorrow. This property had been bequeathed to him by an affectionate wife, now deceased. He had sold his other property and laid out the avails in the improvement of this favorite spot, on which he wished to close his eyes. The common law of a foreign country, the odious remnant of a barbarous feudal system had dispossessed him of this, and turned him and his children, houseless and destitute, upon the world.

Poring over this old piece, its arguments strike the reader of the common “few against the many” polemics that have found their place the historiography of post-Revolutionary society. Still, there is much more to the writer’s discussion than simply an attack on the “privileged”. The idea of the “few against the many,” alive today in popular media with discussions of who exactly constitutes the "99%", was used in post-Revolutionary America to criticize those who owned property, and therefore held status, without the necessary hard work to earn it. In the above, however, there is hard work: there is “industry and improvement,” and yet something still disturbs this social commentator about the nature of the legal system – one that has feudal remnants but continues to affect those in republican America. And are the claims of this farmer baseless or can we find evidence of them in the common law? The following suggests answers

The law of waste as it applied to inheritance changed over the course of the late eighteenth to early nineteenth century. The American legal understanding of waste is that it is any action which causes “permanent harm to real property committed by a tenant” (Black’s Law, 2009), though it could simply mean productive investment in the land by the tenant, as was the 18th century English understanding of the term. The common law view of waste as applied to inheritance developed over time to hold that one could not receive unproductive lands in inheritance, because that land had no inherent value. The economic logic behind the "instrumental conception” of the law was that the market for land knew best, especially in the early nineteenth century, so that a dower in unimproved lands would constrain the future productive value of the land. Indeed, this is the only way to explain the court's (contradictory!) claim that women themselves could not, after inheritance, make the land productive, because that would constitute waste! Horwitz goes so far as to suggest that these irrational decisions suggest that the judges’ goal in this thread of case law was to “undermine the right of dower itself.” For a discussion of the issue, see Horwitz, Transformation of American Law, pp. 56-58.