Remaking Custom

Cover

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Contents

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pp. vii-

Acknowledgments

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pp. ix-xi

A dear friend of mine recently told me that writing acknowledgments was like a “gracious victory lap.” Many friends, colleagues, and family members deserve to join me on that victory lap, because they gave me so much support while this project evolved from idea to dissertation...

Introduction

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pp. 1-10

In a footnote buried in the third volume of his Commentaries on American Law, retired New York chancellor James Kent paused to outline for his readers the duties of a law book author. The first thing that a law book should do, Kent explained, “is to state the law as it is, truly and accurately.” If the author was...

1. America's Common Law: Custom, Choice, and History Lessons

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pp. 11-30

Anglo-American cultural identity, so tied to custom and an immemorial constitution and law, shaped colonial British American society from the first settlements to the establishment of independent governments and legal systems, and beyond. English law was locally variable in nature, a quality...

2. American Constitutions and American Character

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pp. 31-73

Americans made their emphasis on choice and consent tangible when they created their constitutions, which represented some radical departures from their English common-law roots. Revolutionary-era Americans had little desire to form their governments in the English...

3. Property Acquisition and Inheritance

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pp. 74-112

In America, James Wilson declared, property was “of more consequence than life or personal liberty.”¹ With this statement, Wilson combined English traditions of exclusive property rights with the American experience of upward mobility through ease of property acquisition to produce...

4. The Question of Slavery in the New Republic

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pp. 113-140

Zephaniah Swift once boasted that Americans lived in a country where the “constitution of government, the system of law, and the administration of justice” secured “to every member of the community the highest political felicity.” They had created a union of ideal republican polities...

5. Public Lands, Expansion, and the Native Americans

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pp. 141-171

In a charge to the Grand Jury in 1783, South Carolina judge John F. Grimké celebrated the new nation’s victory and congratulated his audience on their new position as the envy of Europe. He encouraged them to “behold the honor you are held in by them . . . see how they press to your....

6. Custom, the Written Law, and American Legal Treatises

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pp. 172-193

In an 1823 address, Philadelphia attorney Charles Jared Ingersoll boasted that America’s mechanical arts—its ships, houses, carriages, and other items of construction—were certainly Great Britain’s equal. The nation was also gaining on Europe in the quality of its education and science. By far, Ingersoll proclaimed, America’s crowning...

Conclusion

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pp. 195-200

In the mid-1820s, while studying with Henry St. George Tucker in Winchester, Virginia, Charles James Faulkner penned an essay on the distinctiveness of American law. “The peculiar situation of this country,” Faulkner wrote, “has given a very peculiar cast to our legal institutions.” Emigrating “from a nation whose body of civil...

Notes

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pp. 201-226

Bibliography

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pp. 227-244

Index

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pp. 245-251