Friday, May 21, 2010

Mann on Revolutionary Justice

Better late than never. Only recently did I discover the webcast of Revolutionary Justice: Law and Society in the American Revolution, the address Bruce Mann delivered when he was appointed to the Carl F. Schipper, Jr. Professorship at the Harvard Law School last year. The HLS press release explains:
“Legal histories of the eighteenth century invariably stop when the Revolution begins and resume only after the Revolution has safely ended,” said Mann, who noted that no one has studied the roles law played in the daily lives of people during the war itself. “People hardly stopped trading with one another, assaulting one another or cheating one another just because there was a war going on.”

According to Mann, the war affected different parts of the country in different ways at different times and with different intensities as theaters of military action shifted from one part of the country to another. He noted that while the British occupied some cities, such as New York, Newport and Savannah, for years, other areas faced less disruption. In a talk interspersed with humor, Mann said: “Connecticut, they merely raided, burning the occasional town. New Jersey, they swept through a couple of times, although, like today, New Jersey was more a corridor than a destination.”

Mann noted that during the war law and violence were never very far apart. Recognizing this, he said, is key to understanding “the many diverse ways in which people in the Revolution tried to hold on to, refashion, and reinvent law and legal order.” Courts throughout the new states were suspended and not restored until there were new, formally constituted governments that could authorize them to resume. “Even in the middle of war and occupation,” Mann said, “Americans tried to give legal legitimacy to their actions.”

Mann discussed the provisional measures states took until civil authority could be restored—the committees of safety, which had limited judicial authority in the absence of formal courts, and, in New York, the Committees for Detecting and Defeating Conspiracies, which had subpoena power, the authority to proceed in secret if they chose to, and the authority to call out the militia to arrest “such persons whom they shall judge dangerous to the safety of the State.”

Mann also discussed the Courts of Police appointed by the British military governors of New York, which had broad civil and criminal jurisdiction and sat without juries. Ironically, loyalists disliked these courts nearly as much as they did the Committees for Detecting and Defeating Conspiracies—one ostensibly created to serve them, and the other created to root them out. In addition, he discussed the courts that eventually reopened and how their dockets reflected the progress of the war. The restoration of courts before the threat of military action subsided, Mann said, makes “a powerful statement of the commitment to civil and legal order.”