Law, Debt, and Merchant Power. The Civil Courts of Eighteenth-Century Halifax par James Muir (review)

Early in The Wealth of Nations (1776), Adam Smith attributes the division of labour to "a certain propensity in human nature . . . the propensity to truck, barter, and exchange one thing for another." In the then-new commercial port of Halifax, where such exchanges were based on credit rather than barter and where little else bound its small, fluctuating population together, the propensity to dispute the terms of those credit relations was a powerful corollary. The law offered the principal arena to adjudicate those disputes and allocated opportunities and costs across various litigation strategies. Economic exchange, then, was structured by the law.

As James Muir notes in this refreshingly empirical study, "civil litigation was . . . a continuation of market transactions in another forum" (p. 126). To reveal patterns in that litigation, Muir has delved deeply into the extensive records of the civil courts of Halifax from the port's founding in 1749 to 1766, a decade before Smith published his treatise. If Smith emphasized how widespread the advantages from the division of labour were, Muir stresses the unequal distribution of advantages from courts that favoured creditors over debtors and merchants and traders over others. Like Smith, however, Muir is primarily interested in the strategic decisions that diverse individuals made in pursuit of their own interests.

Muir thus joins other legal historians in shifting attention from the criminal to the civil law, and from the 'high law' of appellant jurisdictions, professional jurists, and legal doctrine to the 'low law' of everyday dispute-resolution by legal amateurs such as justices of the peace, jurors, and arbitrators. In early Halifax as elsewhere, civil and low law meant debt collection, the subject of more than three-quarters of the actions before the Inferior Court of Common Pleas. What choices did the law offer litigants, who were those litigants, and what choices did they actually make? It's a herculean research agenda, which Muir ably fulfils by systematically mining the surviving minute books and case files of all five civil courts to create a database of more than 2,500 cases. Some readers may find the resulting level of detail daunting, but legal historians are much in Muir's debt for his clear and comprehensive exposition of the constituent elements of civil actions and for mapping precisely how the law worked in practice.

Yet Muir is right to insist that this is also social history. It is concerned not with legal principles and specifics but with how litigants, jurors, and arbitrators acted in their own and their neighbours' disputes. Indeed, social explanation often trumps legal analysis, as when Muir attributes the differential treatment of different types of debt (by note, on account, or for wages) to the livelihood of the plaintiffs most likely to be owed each type. This is undoubtedly part of the answer, but so too is the English law's entrenched preference for written forms of evidence in contract and property transactions.

Reminiscent of an older social history typified by the work of Michael Katz on Hamilton and David Gagan on Peel, Muir's book serves as a reminder of the promise of the quantitative analysis of routinely generated records to uncover the behaviour of the wider population, here divided predominantly into commercial and craft occupations. Muir then compares his findings to those of similar studies of other times and places. Based on these comparisons, he emphasizes Halifax's typicality over its specificity. The question is more who and what than why. Meaning is inferred from observed behaviour and takes the form of possible explanations for patterns that emerge from the quantitative data. All this is thoughtfully done, but meaning in the cultural-history sense of the law's legitimizing symbols, rhetoric, and rituals or in what people said or thought they were doing makes only fleeting appearances. This reflects the sources available, but also the methodological choices made. What might a historian making different choices have done...