Wednesday, November 13, 2013

Researching State Legislative Records: The Biggest Obstacle in American Legal History

The biggest obstacle to writing American legal history, in my view, is the dearth and inaccessibility of records of state legislative deliberations.  Certainly before the twentieth century, and arguably up to the present day, the bulk of American governance has been at the state level, and yet for the entirety of the 1800s and most of the 1900s, there are no records at all of the floor debates in nearly all the state legislatures, nor are the records much more substantial when it comes to other legislative proceedings, such as committee deliberations and reports.  Congress has the Annals, the Register of Debates, the Globe, and the Record, not to mention the Serial Set and shelves of published hearings; the British Parliament has Hansard and the Parliamentary Papers; but New York, Massachusetts, Illinois, Virginia, California, Texas, and nearly all the other states -- from the 1800s up till about the 1960s -- have nothing remotely equivalent.  And what they do have isn’t digitized or, if digitized, isn’t typically assembled in convenient online repositories like ProQuest Congressional. 

In this post, I will discuss the sources that do exist for state legislative history in the period circa 1789-1960 and strategies for using these important but challenging sources:
 
--Journals.  Every state legislature kept a journal.  This was a skeletal procedural record.  It traced the life of each bill in each legislative session: who introduced the bill; to what committee it was referred and whether that committee reported it; whether it was amended, how, and by what vote; and whether it was passed and by what vote.  This source can be useful if you want to see which legislators voted for or against which bills.  It can also be useful if you want to trace changes in a bill’s text (though beware the journal may only include the text of amendments and not of the original bill, for which you’ll have to go to the state archives).  The journals typically contain no discourse -- no speeches, no debates, and no substantive committee reports.  Just bill numbers and roll calls.  As to accessibility: Some journals (not all) are on Google Books.  A few are on LLMC.  A large number were included in a New-Deal-era Library of Congress microfilm project called Records of the States of the United States of America (edited by William Sumner Jenkins and released in 1949-51), the contents of which appear in A Guide to the Microfilm Collection of Early State Records (1950).  Complete runs of this microfilm series appear to be rare, though several libraries have locally-relevant chunks of it.  LLMC’s director recently said he hopes to digitize the whole microfilm series. 

--Document Series.  States legislatures would sometimes publish series of documents, which might include deliberative records like committee reports.  Many states published such series, but usually in a sparse and intermittent way; a few published them more regularly and copiously, though none (from what I have seen) approached the comprehensiveness of the Congressional Serial Set.  Many of the series are listed in A Guide to the Microfilm Collection of Early State Records (1950), Class D, though beware that the listed documents are often executive department reports (e.g., of the state auditor), not legislative material proper.  And the Guide warns it isn’t complete (xviii).  I’ll say a few words about two big states that seem unusually comprehensive:
--For New York, the series was jointly titled Documents of the Senate of the State of New York and Documents of the Assembly of the State of New York, and it ran from 1831 to 1976.  The volumes contained committee reports, sometimes on particular bills and sometimes on issues of general concern to the legislature.  Various libraries have some or all of the volumes, and some have a complete microfilm set.  Many (though not all) of the volumes are now on Google Books, and several from circa 1830-1855 happen to be included in Gale’s new database Sabin Americana (which isn’t specifically aimed at government documents).  You’ll want to consult the indexes for the series (referenced here: http://olinuris.library.cornell.edu/content/new-york-state-documents-finding-guide). 
--For Massachusetts, the series was jointly titled Documents Printed by Order of the House of Representatives of the Commonwealth of Massachusetts and Documents Printed by Order of the Senate of the Commonwealth of Massachusetts.  The series’s content and availability seem to be similar to New York’s.  Indexes can be found at:
--https://archive.org/details/indexguidetomass00blou (covering 1802-1882)
--https://archive.org/details/indextomassachus00adam (covering 1883-1899)
--https://archive.org/details/indexofspecialre00mass(covering 1900-1988)

--Reports of Ad Hoc Bodies.  The best information about a state law often appears in the report of some ad-hoc body that the legislature established to propose the law and/or to study the problem with which the law would deal.  These bodies might be composed of lawmakers, outsiders, or a combination.  Their reports were often published as free-standing pamphlets or books, with titles like Report of the Commissioners Appointed to Inquire into the Expediency of Revising and Amending the Laws Relating to Taxation and Exemption Therefrom (Boston: Wright and Potter, 1875).  Many are on Google Books.  Beware that such a report may reflect the view of only one faction -- and that the enacted law may have diverged from what the ad hoc body wanted. 

--Newspapers.  If you can find newspapers from the relevant state that have been digitized for the period of the law’s enactment, by all means search them for coverage of any debate.  In refining your searches, it can help to consult the legislative journal (the skeletal procedural record discussed above) to pinpoint the dates on which key steps occurred (introduction, amendments, final passage).  In the absence of, or in addition to, digitized newspapers, consult secondary sources to identify the leading newspapers of the state and/or state capital.  Identify more than one newspaper to get a range of partisan affiliations.  Then, guided by the dates gleaned from the legislative journal, consult those newspapers (you may need microforms and interlibrary loan) to find articles covering the debate.  Beware that you cannot rely upon headlines.  It was common for a newspaper to send a reporter to cover the legislature for the day, for the reporter to pen a single article summarizing debate on numerous bills (devoting one or two paragraphs to each bill), and for the headline of that article to focus solely on the most prominent of those bills.  Thus, you need to scan all the headlines to identify every article that covers any legislative activity, and then you need to skim each such article to see if your bill is mentioned.  Also skim the editorials, which are often untitled. 

--Gubernatorial Messages.  In most states, the governor was required to send a message to the legislature each year, which would discuss a laundry list of matters.  Often the message would contain discussion of proposals for some later-passed law.  Many states published the gubernatorial messages in their legislative journals (on which see above).  Some published them ad hoc, as free-standing pamphlets.  Many are listed in A Guide to the Microfilm Collection of Early State Records (1950), Class D.  In a few states, the gubernatorial messages were compiled retroactively in comprehensive multi-volume sets, e.g., Messages from the Governors [of New York] (edited by Charles Z. Lincoln, covering 1683-1906); Messages of the Governors of Tennessee (edited by Robert H. White et al., covering 1796-1933).  Some of these are on Google Books. 

--Constitutional Conventions.  Constitutional revisions tend to be more frequent and far-reaching at the state level than at the federal level.  And state constitutions tend to be longer, and dispose of more issues, than does the federal Constitution.  Thus, many states have been through several constitutional conventions, and the deliberations of each convention are normally recorded and published as a free-standing book.  They are pretty much all digitized, in Google Books and/or the database “Making of Modern Law: Primary Sources.” 

--Clues Within the Statute Book: Recitals and Revisers’ Notes.  In the colonial and early national periods, it was common for legislatures to begin the text of a statute with a recital stating the reasons for its enactment.  (This custom was linked to the early pattern whereby legislation often grew out of citizen petitions.)  Then, in the nineteenth and twentieth centuries, it was common for the legislature, every few decades, to appoint one or more “Revisers” to organize and clean up the state’s statutes.  Usually this was meant to be a technical exercise, but sometimes the revisers would make policy choices (e.g., if they had to choose which of two inconsistent provisions to delete).  The revisers would sometimes explain what they were doing -- in notes to accompany the new code they wrote.  Thus, if you look up old state codes (as opposed to session laws), you may find revisers’ notes, usually interspersed with individual provisions.

--Colonial Legislative Deliberations.  Ironically, colonial legislative deliberations are generally easier to research than pre-1960 state legislative deliberations.  The reason is that (a) in the colonial period, some legislatures recorded certain aspects of their proceedings in manuscript, (b) between the mid-1800s and early 1900s, the state governments that inherited these manuscripts published them, often in handsome volumes, and (c) many of those volumes have recently been digitized, particularly in the database “Making of Modern Law: Primary Sources,” and sometimes on free state websites, as with Maryland (www.aomol.net).  These publications usually contain manuscript records of the colonial government generally (not just the legislature), so legislative material will be interspersed with other stuff (e.g., court records).  And the exact nature of the legislative material will vary from colony to colony.  It may be next to nothing, or it may be something quite valuable, like substantive minutes of the debates, or the text of substantive messages sent back and forth between the houses of assembly, council, and governor (though I’ve never seen anything approaching the verbatim transcript that you find in the Congressional Record or Hansard). 

--Exceptions.  I’ve heard tell that two exceptional states -- Pennsylvania and Maine -- were publishing substantive records of their floor debates in a way that approached the Congressional Record.  See Phillips Bradley, “Legislative Recording in the United States,” American Political Science Review 29 (1935): 76.  This is confirmed by A Guide to the Microfilm Collection of Early State Records (1950), which also notes a smattering of such publications for Indiana and Louisiana, but no other states.  Ibid., xiv, D296-D299. 

Hope this is helpful to some of you Legal History Blog readers.  If I’ve left things out or gotten things wrong, please add a comment!  

Acknowledgment: I thank George Fisher and Fred Shapiro for discussing some of these matters with me (but absolve them of any responsibility for what I’ve said!). 

5 comments:

Alex said...

I'd like to nominate this for "most useful post in the history of this blog" (no offense to the rest of the LHB crew, who do fine work as well). Very much appreciated.

Dan Ernst said...

No offense taken. I quite agree.

Mitch Fraas said...

This is fantastic! I've had good luck searching for states as corporate authors in Hathi trust, there's a lot to go through but often some long series of relevant publications. e.g. for Arkansas: http://catalog.hathitrust.org/Search/Home?lookfor=%22Arkansas.%22&type=author&inst=
Also wanted to note that the guide to the records of the states microfilm series is online at https://archive.org/details/guidetocollectio00jenk

Anonymous said...

What I think is important about the microfilm produced by Jenkins in his Early State Records microfilm series is that some of these materials that were around when he was microfilming them are no longer around or are crumbling. And example would be legislative journals. I have always wondered what the Library of Congress has in print for most states. The problem with digitizing the Jenkins microfilm is that it was produced over 50 years ago so the quality of the microfilm may not be that good. But I think that is what Maryland did.

Anonymous said...

Only the State of Maryland completely digitalized their part of the Records of the States of the United States of America:
http://msa.maryland.gov/megafile/msa/speccol/sc4800/sc4872/html/all.html