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!).
