Currency Policies and the Nature of Litigation in Colonial New England

2004 Journal of Economic History  
Judicial enforcement of debt agreements was one of the central and most important aspects of government promotion of the nascent colonial economy.1,'2 Nevertheless, legal historians have characterized the colonial court system in contrasting terms as a bulwark of pre-industrial cultural norms impeding development, or as a crucial catalyst of commercial transformation. In either case, legal historians' focus on law developed in the courts, as opposed to the policies of the legislative or
more » ... e branchs of government, has led to an assumption that the law adjusts in some natural way to changing economic and cultural climates. According to this view, lawsuits are an indirect reflection of prevailing cultural norms and market conditions. Judges adapt the law as those norms and conditions change. The court system therefore fulfills an institutional role of ensuring that the law keeps pace with economic and societal transformation, and comes close to optimally satisfying the legal needs of local communities. The most prominent description of the insular and community-oriented base of colonial law is Morton Horwitz's The Transformation of American Law, 1780-1860. Horwitz emphasizes the centrality to eighteenth-century law of limitations on market activity such as the just price and usury doctrines, contracts involving transfers of property rather than monetary payments, and damages based on equity and fairness rather than on satisfying expectations3 Emphasizing the prevalence of litigation based on direct property exchanges, Horwitz concludes that the law reflected undeveloped markets and a community-oriented society in which goods "were usually not thought of as being fungible. . . . [and] [e]xchange was not conceived of in terms of future monetary return."4 To Horwitz, colonial law reflected a pre-industrial communitarian mindset, "essentially antagonistic to the interests of commercial classes,"5 in which justification for contractual obligation was "the inherent justice or fairness of an exchange."6 Colonial law applied by judges, therefore, reflected the values associated with pre-industrial, agrarian societies. In this respect, Horwitz contrasts the judicial doctrine of the eighteenth century with that of the nineteenth century, when judges began using common law instrumentally to promote capitalist values and a market economy. With regard to both the colonial period and the nineteenth century, however, Horwitz portrays the law as harmoniously synchronized to advance prevailing cultural norms and preferences regarding economic activity. More recently, Bruce Mann's Neighbors and Strangers: Law and Community in Early Connecticut presents a contrasting interpretation of colonial law and its relation to market development. Mann examined changes observable in litigation data, rather than changes in legal doctrine. He found that litigation related to book accounts domi-1 This dissertation was completed under the direction of Robert W. Gordon at Yale Law School. 2 Debt litigation dominated the caseload of the colonial courts. Debt cases, for example, constituted 74 percent of all cases heard during the period 1725 to 1774 in the Plymouth, Massachusetts County Court of Common Pleas, the court of original jurisdiction for civil (non-
doi:10.1017/s0022050704262805 fatcat:u3p7faib4za2dflinvuni3q4v4