Thursday, October 25, 2007

Priest reviews McNamara, From Tavern to Courthouse: Architecture and Ritual in American Law, 1658-1860

Martha J. McNamara, From Tavern to Courthouse: Architecture and Ritual in American Law, 1658–1860 (Johns Hopkins University Press, 2004) is reviewed in the Law and History Review by Claire Priest, Northwestern University. Priest writes:
From Tavern to Courthouse examines the legal history of early Massachusetts through the lens of courthouse architecture. It describes an emerging professional legal bar struggling to elevate its prestige through the construction of increasingly specialized and dignified spaces for court proceedings. The strength of the book lies in its visual images and in the anecdotal descriptions of physical spaces and rituals that McNamara culled from primary materials. The book contains what is likely to remain a definitive collection of photographs and drawings of the courthouses built in Massachusetts between the mid-seventeenth century and the mid-nineteenth century. The numerous anecdotes peppered throughout the book—often comments by major historical figures like Samuel Sewall and John Adams—provide a fascinating glimpse into how architecture and ritual were experienced by participants in the system.

McNamara uncovers three broad phases in the evolution of the legal system during the period she studies. The most important discovery of the book is that, prior to the late eighteenth century, court proceedings took place in "townhouses": multipurpose buildings located in town centers that contained mixed-use space for commercial and government activities. In the typical townhouse, merchants and shopkeepers used the first floor as a market exchange. The second floor contained multi-purpose rooms that accommodated, at various times, civil, criminal, and probate courts, town meetings, and public land title and mortgage records. Judicial business in the form of jury deliberations and decision making by individual justices of the peace often spilled over into local taverns.

As McNamara notes, the townhouse design reveals the close connections between commercial interests and the legal system in early America. In Boston, part of a merchant's daily routine was to "walk the exchange" at the townhouse, which meant to literally walk around the market gathering information about market developments (such as ships arriving and departing, new regulations, and market conditions). These merchants were likely to have frequent encounters with the justices of the peace, clerks, and legislators who performed their duties on the second floor of the building and, again, who often moved to taverns to deliberate as members of a jury or to execute deeds and decide cases as justices of the peace.

Although not emphasized by McNamara, the townhouse is terrific evidence that a central function of the colonial legal system was to generate reputational and economic information about individuals in the community. Why was the courthouse placed above the merchants' exchange? One reason is that the design made sense in a society, like that of the American colonies, in which most economic transactions involved relations of indebtedness and extensions of credit were a primary form of investment for people with resources. News of the daily court judgments, the recording of mortgages, and judicial decisions related to the probate of wills and inheritance were the contemporary equivalent of a ticker tape charting the status of one's investments. The information generated at court was market information as important as the information gleaned from the merchants' exchange.

In such a society, reputation was possibly a person's most valuable asset and shame sanctions were an effective form of punishment. Surprisingly, McNamara does not examine in detail how the architecture of townhouses included prominent spaces allocated for the administration of shame sanctions. In a conjectural drawing of the 1658 Boston townhouse included in the book (fig. 1.1), the whipping post and pillory are placed prominently in front of and visible from the merchants' exchange. One law in effect during the mid-seventeenth century (not mentioned by McNamara), for example, penalized the altering of public mortgage records with either two months in jail or two hours in the pillory at the merchants' exchange with a sign "Defacer of Records" over one's head. A discussion of the relationship between shaming sanctions and architecture would have enriched her account.

McNamara instead emphasizes that, from the perspective of lawyers and others involved in the legal system, the architecture of the townhouse suffered from one principal weakness: its mixed-use spaces did little to elevate their standing and, therefore, "the weight of communicating judicial authority fell primarily to the justices and to their court rituals" (11). Without dignified architecture, legal actors had to emphasize protocol and rituals, such as horn-blowing, costumes, and processionals to gain legitimacy. Heavy emphasis on protocol and costume, however, was not always effective. In his description of the famous Writs of Assistance case that mobilized support for the American Revolution, John Adams described the judges as wearing dress "more solemn and more pompous than that of the Roman Senate when the Gauls broke in upon them" (59).

Continue reading here.

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