Privilege and Creative Destruction: The Charles River Bridge Case (review)

book reviews169 the institution continued to exist, in slight vestiges, until 1841. But in all fairness, Lee should not, as Professor Coulter reminds the reader in his concluding paragraph, be judged by what many people know and feel in the twentieth century. "If he be judged," the author states, "by the spirit of the times and places wherein he lived, then he should be rated as an admirable character, modest, unambitious, scientifically minded, and dedicated to helping the farmer and the common man." This is a well prepared book. The author develops a good case for Lee's significance in the field of agriculture. He points up his contributions , but does not neglect his weaknesses, yet overall, deals with the subject in a sympathetic way and in a readable style. Professor Coulter has made an important contribution to agricultural history. James McDonouch David Lipscomb College Privilege and Creative Destruction: The Charles River Bridge Case. By Stanley I. Kutler. (New York: Lippincott, 1971. Pp. 191. $5.95.) Professor Kutler's analysis of the causes, nature and consequences of the 1837 Supreme Court case of Charles River Bridge v. Warren Bridge is a thoughtful and generally careful piece of work. He describes not only local circumstances which provoked the decision but also the economic and legal consequences of it. Relying heavily on James Willard Hurst's argument that nineteenth-century law was used as an instrument to encourage economic enterprise Kutler demonstrates the meaning of this decision for the economy of Boston and the nation. As a result of Chief Justice Taney's majority opinion there would be many new avenues into the economic future. Charter rights granted in the past would not stifle new options made necessary by the pressure of an expanding economy. Old privileges might be destroyed to encourage the creation of new alternatives. In telling this story Kutler offers several thoughtful comments on the case and its meaning. He rightly notes that the decision did not mark a revolution against the principles of John Marshall. In fact, Kutler argues convincingly that Marshall might even have agreed with it. Kutler also insists properly that the court's decision was not a requiem for private property. Nor did it mark the demise of vested charter rights. Those rights would still be protected if legislatures clearly granted them. The Court would enforce such rights in future cases, even if enforcement proved harmful to the community. The author also makes the intriguing suggestion that the seeds of later substantive due process arguments may have been planted by decisions in which courts decided which public powers and rights legislatures could not grant in charters. Kutler is sensitive to the fact that all truth and justice did not rest with the majority opinion. Considering the modern consequences of government encouragement for "progress" he suggests that the implications of Judge Story's dissent deserve more respectful consideration 170CIVIL WAR HISTORY than they have previously gained. Unfortunately he does not elaborate on this point extensively. Though generally a very competent and thoughtful work a few flaws exist which this reviewer found annoying. The lack of footnotes in a book essentially for specialists is especially disturbing. Also, Kutler occasionally overstates an argument at one point and then refutes it a few pages later—witness his statement on page 56 that the Marshall court "had invariably interpreted the contract clause of the Constitution in such a way as to restrain state interference with property rights." Yet eight pages later Kutler is describing the Marshall opinion in Providence Bank v. Billings as a major precedent for Taney's Charles River Bridge opinion. Later, as indicated, Kutler emphasizes similarities between Marshall and Taney in questions involving state contracts and charters. In addition, Kutler occasionally slips up on a matter of fact or omits material that would have further illuminated his study. It is not correct to say that Thomas M. Cooley "was as devoted as Webster, Story and Kent to the protection of property and the enforcement of contract." Unlike these gentlemen Cooley deplored the Dartmouth College decision. Kutler might also have reinforced his argument for the ubiquity of concern for using the law to promote economic progress had he...