- Blackstone in America: Selected Essays of Kathryn Preyer
Kathryn Preyer passed away on 19 April 2005 at the age of eighty. 1 She was a teacher of American history in the history department at Wellesley College in Massachusetts. 2 This book is a collection of her essays, published between 1962 and 1992, put together by those who knew and loved her and had the deepest respect for her work on the early national period in America. The book itself is a testament to that affection and admiration, which comes shining through in the preface, the general introduction by Stanley Katz, and the introductory essays by each of the three editors.
The book is divided into three sections - none of which, it must be said, deals with Blackstone. The first, introduced by Maeva Marcus, editor of the Documentary History of the United States Supreme Court and past president of the American Society for Legal History, contains four essays focused on the role of the judge in the early national period. Most of these pieces were written in the 1960s and were based on Preyer's doctoral dissertation on the Judiciary Act of 1801 (when she was Kathryn Turner) (7). The first essay 3 gives a sense of Preyer's style and methodology. It begins with a description of the federal Judiciary Act of 1789 and the limited jurisdiction given to federal courts. When a lame-duck Federalist Congress expanded federal jurisdiction under the Judiciary Act of 1801, it was not in response to the election of Thomas Jefferson in 1800, as is commonly supposed. In fact, Federalists had begun planning to expand federal jurisdiction as early as 1799. Their intention related to their fear that state legislatures and state courts would side with settlers when determining rights involved in large land [End Page 536] purchases (rather than with out-of-state speculators like the Federalists themselves) and also to their desire to expand the criminal jurisdiction of federal courts, their wish for effective tax collection, and their interest in policing sedition (29-37). In other words, the causes of enactment were multi-factorial. Political defeat gave 'a driving urgency' to the desire to pass the statute; it did not, however, occasion it (38). This is a good example of a technique Preyer frequently used: explaining the standard account and how that account was overly simplistic and then offering a correction. In another piece, 4 she explains why the sedition trial of James T Callender was not just 'a way station' to the better-known story of the impeachment of Samuel Chase (92). Another looks into who 'the midnight judges' were, 5 the Federalists John Adams rushed to put in place on the eve of Jefferson's election, pointing out that they were political moderates rather than rabid anti-Republicans (89). To my mind, the stand-out essay in this group and the one that would appeal to a wide audience is Preyer's piece on the appointment of John T Marshall to the United States Supreme Court. 6 Preyer somehow manages to make this suspenseful despite the fact that we can hardly say we do not know where it is going. This, it seems to me, is one of the hallmarks of a great historian, to be able to tell an engaging story that highlights the contingency of events, how what happened is not what had to happen.
The second set of essays, introduced by R Kent Newmyer, relate to the criminal law in post-revolutionary America and come from a later period of Preyer's career, the 1980s. The third and last of these pieces, 'Jurisdiction to Punish: Federal Authority, Federalism, and the Common Law of Crimes in the Early Republic' is in direct conversation with Newmyer's own work on United States Supreme Court judge Joseph Story. 7 This is an incredibly helpful essay for anyone seeking to understand the American controversy over the federal common-law jurisdiction over crimes. Not surprisingly, a historical inquiry reveals that...