pg 205
To recap something for context. The author makes great distinction while talking about the transference of English Law to the colonies and later America as a nation about Courts of Law and Courts of Chancery. The law courts are the source of common law as we know it today, and were largely used by the aristocracy. The Chancery was local adjudication and handled local matters of dispute. (I intentionally want to avoid saying law as the text makes a clear distinction)
This section of the text concerns the development of contract law, what was at that time could be considered "residual" in his words. That is to say the exact law was unclear and not necessarily covered under black letter law or common law. If so, as equally unclear under the law who had jurisdiction in contract matters. Given the contracts are mainly a local concern at this time, why weren't these cases shuttled to the dying institution of courts of Chancery in the United states? It seems like a natural fit.
pg 205
This page later goes on to what one could consider the main thesis so far of the book, American legal development was driven by increasing ownership of land. These new owners were not either tolerant or up to the rigors of land ownership as they were in post-feudal England. So the result was a simplification of the law.
In this return to theme, the author connects that contracts became much simpler and had to be come more specific and legally reliable. This makes me think of Korea's "unique" view of contracts, their application, and enforceability. One could say feudal Korea with its tenant farmers made these contracts a pointless exercise. That is if one excepts the authors thesis.
The author then goes on to something that either supports or counters this conclusion about Korea. He sites as an example of simplification the migration from seals as a manner of conveying consideration (agreement) to the use of signatures to do so. Korea has a very developed use of name "chops", i.e. seals, to sign official documents. On one hand you could argue that during feudal times only land holders used chops for documents, so this is consistent. Yet the chops are still used today, and why then do the modern chops not carry the same conveyance of consideration as those feudal chops did?
p 207
This chapter is about the penal system in post-revolutionary America. I wish he did not gloss over the evolution of flamboyant penalties in the colonial era in pg. 32-33 (stocks, scaring, scarlet letters, etc.) to the more familiar criminal justice we find now.
p 207
Odd how he does not talk about the fact Georgia was started as a penal colony, and its legacy.
p 208
It is unclear to me if he means Kentucky or Virginia immediately after the revolution, but in one of those states women convicted of sodomy were condemned to getting a hole bore through their nose. Sounds like a plot for Japanese porn.
p 209
He tries to compare the statistics of the implementation of the death penalty in Mass. vs. South Carolina. He says SC did it more, but it is unclear if he is comparing absolute numbers or proportional numbers. A relevant detail in this case I think.
p 213
In talk about the development of a dedicated police force, the author talks about initially law enforcement was a civic duty. There was no dedicated police. He mentions slave patrols, local citizens in the south who gathered to collect escaped slaves. Earlier in the book he vilifies slave patrols as oppressive, if not sadistic. This passage makes one think that a slave patrol was a duty of civic minded individuals to maintain law and order, not a vigilante group. Which is it?
p 214
In the 1820's in Alabama there was a vigilante group called the Regulating Horn, which, as I gather, developed into an umbrella group. It also discusses similar groups in South Carolina. The tactics, if not some goals, are reminiscent of what I have read about the Ku Klux Klan. I wonder if there is a spiritual or cultural connection between these groups just 40 years a part.
p 220-221
In a bit of linguistic jujitsu, he discusses the harsh conditions of post-Revolutionary prisons and then back tracks a bit and justifies them. I wonder why he did not do the same in his reference to the treatment of indentured servants pre-revolution. Especially since that institution was a penal measure as well. (Note my previous reference to servants here).
p 224-225
In this case the author supposes what was going through Mass. Justice Lemeul Shaw in a early tort case. Only does so through the general mood of society, or what he presupposes the general mood of society. Seems intellectually sloppy to me.
In Retrospect
I previously discussed why owners were not found liable for the conduct of slaves. This gives a partial answer of sorts, tort law was not developed to the point we recognize it today. As part of his explanation of the rudimentary tort law at this time he references the principle of "fellow-servant" first discussed in writing in Blackstone's "Commentaries on the Law" circa 1750 from England. While this common law precept does exonerate a fellow servant, and extension employee, from liability it does not do so for the owner. Indeed it does the opposite. Again why wasn't this principle applied to slave owners.
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