Monday, July 30, 2012

My Annual Hommage to Hurst

Every summer I teach a ten-hour course on the common-law method to entering LL.M. students.  The main goal of the course is to help law graduates from Civil Law countries get a feel for how legal rules can be said to emerge from a series of appellate decisions, the kind of Law 101 stuff we all do in our first-year courses.  Mostly I use some cases from the start of my Property course, but I also include some legal history, so that students from common-law countries have something to do.  I devote the morning of the second day to readings on the settlement of the upper Midwest.  They start with a selection from Benjamin Horace Hibbard’s History of the Public Land Policies (1924).  Toward the end come excerpts from John Locke, Second Treatise of Government (1690) (Chapter V, Of Property), and William Blackstone, Commentaries on the Laws of England, vol 2 (1766), *2-5.  (I preface Blackstone with an excerpt from Stanley Katz’s sparkling introduction to volume 1 of the University of Chicago Press’s facsimile reproduction of the Commentaries.)  But for me the highlight are two documents on the settlers of Kenosha, Wisconsin, which originally appeared in an appendix to the state’s Assembly Journal for 1858.  These folks are, or course, none other than Willard Hurst’s Pike Creek squatters; I made my way to the documents via the footnotes to Hurst’s Law and Conditions of Freedom in the Nineteenth-Century United States (1956).

As I tell the students, I include the materials in part as an hommage to Hurst but also to advance the theme for the day, which is how the nineteenth-century American state had to come to terms with and work through the norms and associations of groups within civil society.  (In the afternoon I make Pierson v. Post stand for this.  Devotees of the case will readily see the connection if they consider Livingston’s reference to “the arbitration of sportsmen” and how his “reasonable prospect” standard would function in the hands of a jury in a justice of the peace court. )  I argue, with Hibbard, that the squatters’ actions, “while not legal, were extra-legal rather than illegal.”  That is, they felt themselves to be constrained by law, just not the official law of the federal statute books.  That, it seems, to me is the moral of the two stories that I’ll reproduce in the next post.  Although I don’t know exactly why Wisconsin’s legislators decided to reproduce the stories in 1858, I like to think that, in the midst of the uproar over their opposition to the Fugitive Slave Law, which culminated in Ableman v. Booth (1858), they felt the need for an origins myth demonstrating that Wisconsites had always been a law-abiding people, even when they resisted official law.