Wednesday, July 6, 2011

Who Killed the Business Control Project?

[This is the fourth and final post in a series entitled "Malcolm Mason, Julius Goebel and the 'Control of Business' Project: A Dispatch on the DLI School in the 1930s."   The series begins here.]

I'm sure other contemporaneous evidence of Goebel's thinking survives in the archives, but for now that's where the trail ends. Nothing I've turned up is inconsistent with the reason Goebel gave Mason for not publishing his manuscript: the apprentice's style did not accord with the master's notion of Wissenschaft. And even though Goebel brought a belletrist spirit to his own writing, a case can be made from the chapter Mason has made available that he went too far. Having readers depart for Tudor England from the Russia of 1917 certainly unsettled their expectations, but it also asked them to analogize from something most knew little about to something even more unfamiliar. Moreover, that Mason's discrete nuggets of information in fact make out a pattern becomes clear only in the final paragraphs. Still, Mason's argument that England was a thuggish,"maintenance" society with nothing deserving to be called a constitution is stated clearly, investigated in a variety of settings, and supported adequately. His consideration of transnational authority, such as the Catholic Church, seems prescient in light of the legal academe's long relcutance to adopt a global perspective. And although de gustibus non est disputandum, I find Mason's concluding paragraphs masterful:
We are accustomed today to think of law as the practice of official persons. . . . We think of law from the point of view of litigants before a tribunal whose official character is given by an extralegal, a political, order. This point of view is a deliberately limited one. Within its limits it is a fruitful one. But the historian has another point of view. For the lawyer, the line between politics and law is essential. For the historian, it is only terminological. The historian of law or of a particular aspect of law must not disregard political questions as outside his special domain. For him, the official character of the tribunals whose law he deals with is not given by an order outside the realm of his inquiry. The largest part of the study of the growth of law in any field must be the study of the growth of the authority of tribunals in that field.
We, therefore, appropriately begin our inquiry into the law affecting business transactions in the early Tudor period by asking who were the officials whose practice constituted this law. Placing ourselves arbitrarily at the opening of the reign of Henry VII we have met a startling situation. What persons had official character with respect to the law affecting business transactions? None. There were no officials.
England had been ravaged by war, famine, plague, torn by dynastic quarrels and religious dissension, pillaged by robbers, and oppressed by landlords and profiteers. It was a wasteland. Only the fragmentary phrases of a lost order no longer meaningful gave a cold comfort to literary men. But plain persons looked for safety to obscurity, or to numbers, or to a man; gave polite and lowly recognition to any king or usurper whose trumpets passed through a town, or arrayed themselves under their own sign to resist any, or followed some particular kingmaker or their own allegiance as he prevaricated in either scale.
In all the world, authority is unseated. There is in England, and in the whole world, so far as the world touches England, no constitution; there are no officials, only anarchy ordered by gross probabilities, only individuals strong of their own strength.
The style may not be ‘"academic," but it is awfully good.

Circumstantial evidence suggests that Murray's expressed or anticipated disapproval may have been an additional factor in Goebel's decision not to publish Mason's manuscript without further revisions. First, although I do not know that Murray read Mason's manuscript, he read in draft and commented on every other manuscript that emerged from Goebel's shop. Thus, in 1937 Goebel's acknowledgment of Murray's interest in of Felony and Misdemeanor bordered on the sycophantic: "He has not only read and criticized the various recensions of each chapter but has displayed an indulgence for their shortcomings that has been an unceasing comfort." In a foreword dated May 1938, DuBois declared it "my privilege to have the manuscript [of The English Business Company after the Bubble Act] read and criticised by Mr. George Welwood Murray, an attention for which I was grateful." In September 1938 Shaw Livermore noted that Murray "was kind enough to read the entire manuscript [of Early American Land Companies] critically"

Further, Murray did not hesitate to question or condemn passages in other monographs financed by the Commonwealth Fund. Learned Hand, a member of the Fund's Legal Research Committee, had to talk him out of objecting to a passage in I. L. Sharfman's monumental study of the Interstate Commerce Commission that criticized a railroad reorganization in which Murray had a part. Hand also assuaged Murray's doubts about another monograph's harsh condemnation of deportation procedures by assuring them that the portrayal was accurate.

One can well imagine that Murray would not have approved of Mason's work. Someone who so revered English legal history that he endowed its study at his alma mater would have found Mason's analogy to revolutionary Russia gratuitously provocative and even offensive. Further, Murray wanted the project to establish a historical pedigree for self-regulation by business, a mission that would scarcely appeal to someone in Mason's circle. Mason told me that, "if anything, I supported the New Deal" in the manuscript. That would certainly have been consistent with Mason's fond recollection of the alphabet agencies. In 1980 he wrote:
[The New Deal] replaced all that by free spirits empowered to render fair results quickly through newly created organizations, free of hampering rules of evidence, encouraged to acquire and use expertise, freely acting as legislator and adjudicator, complainant, prosecutor, jury and sentencing judge all at once. How shocking by old law standards. How oxygenating if efficient results with maximum concern for traditional formalities are to be valued.
How far a history written with such allegiances might depart from Murray's expectations can be inferred from the chapter Mason has posted. Judging from his statements to the Commonwealth Fund's Legal Research Committee in 1934, Murray expected the "Business Control" project to reveal enlightened businessmen regulating themselves in the interest of their trade and society. If he read Mason's manuscript, he would have learned that Coventry's commoners had been forced to rebel against a selfish "merchants' government." Some guilds were "under the domination of the town authorities"; others were denounced as "usurpers of authority." Mason could discover "no test by which the actions of the towns and town officers can be distinguished from private group aggressions and extortions, and no test by which the actions of the gilds and gild officers can be distinguished from private group aggressions, extortions, riotous assemblages and conspiratory associations."

If in fact Murray read and objected to such findings, Goebel could scarcely have disregarded him in the spring of 1938. Not only did the FRLH still depend on Murray to keep the Commonwealth Fund's checks coming, that summer Goebel became the first George Welwood Murray Professor of Legal History. Under the circumstances, I continue to entertain the possibility that Goebel raised his stylistic concern not simply because he preferred a more scholarly tone for the FRLH's publications but also because he thought that Murray would object to the manuscript on substantive grounds, and he wanted to keep his "sugar daddy" at bay while he revised it.

Further research should clarify matters. Until then, I suspend my judgment but not my gratitude to Malcolm Mason for making available such an important and interesting document from the dawn of DLI.

[A footnoted version of these posts is available upon request.]