The Peace: The Meaning and Production of Law in the Post-Revolutionary United States

ion of individual rights is not only to misconstrue its most basic dynamics, but also to miss its most fundamental changes. The better question is how and when rights became so central in configuring people’s relationship to the law. From this perspective, legal change looks less like the progressive extension of rights to previously excluded groups of the population and more like the imposition of a new framework that exacerbated existing inequalities through the rhetoric of equality. A system based in individual rights made subordinate people without rights even more vulnerable than they already were by cutting off all access to the legal system.20 The meanings attached to the term “local” are critical in maintaining the analytical framework of individual rights within the field of legal history. The peace was tied to a localized system. Within legal history and among academic historians more generally, it is difficult to acknowledge that anything local could be of historical significance, because historiographical conventions consign local history to antiquarians, based on the assumption that provincial places were historically marginal in the past and therefore are inconsequential for understanding historical change. In legal history, the pejorative connotations so often applied to all things local reach back even further, to post-Revolutionary leaders bent on creating strong state and national governing institutions and uniform bodies of law. These men, most of whom were professionally trained lawyers, were part of a national network that applied revolutionary ideals to create rationalized bodies of law and institutions of governance. For many, one of the most pressing concerns in the post-Revolutionary decades was the solidification of the state’s legal authority. State institutions, as they envisioned the situation, would produce and maintain a uniform body of law based on the protection of individual rights. To realize that goal, reformers faced two obstacles: the logic of the peace and the authority of local jurisdictions, obstructions so entwined that they appeared as a single problem, namely localized law.21 History proved crucial to the task. As reformers worked to create uniform bodies of law, first in property issues and then in public matters, they also compiled documentary sources and constructed narratives that obscured the fact that local jurisdictions actually had authority over a broad range of public matters. In these materials, they cast localized law as an archaic throwback, which inevitably gave way to progressive change as laws were standardized and rights were uniformly defined and applied. In the process, reformers generated a set of expectations about where the law resided and how it moved through the system. Not only did reformers separate “the state” from “the local,” but they also associated the state with other kinds of legal practices and insisted on their superiority. Reformers had such confidence in this vision of the legal system that 20. Id. at ch. 7. 21. Id. at ch. 2. Assembled_Issue_3 v5 (Do Not Delete) 2/22/2012 9:07 AM 576 UC IRVINE LAW REVIEW [Vol. 1:3 they described it in normative terms: since there was no other option, the system evolved naturally—if somewhat haltingly and fitfully—in this direction. Their rhetoric, so powerfully articulated in the archival sources, has embedded their vision within the historiography.22 The localized system of the peace, however, was not local in the way that state reformers or later historians portrayed it. The term referred to a conceptual approach to the law as much as its institutional or geographic location. It was not so much backward and doomed as it was popular and powerful. In the postRevolutionary system governed by the peace, law was everywhere and nowhere. The legal system dealt with a wide variety of issues in this period, including poor relief, public health, and economic regulation. While these matters were attended to locally, there was no single location for law. Those towns where circuit courts met were likely to have courthouses. But, since legislators kept breaking up existing districts and adding new ones to accommodate the growth of the population and its westward movement, circuit courts met in whatever buildings were large enough until courthouses were built. These early courthouses tended to be unremarkable in style. Although distinguished by their size, they blended in with the other buildings in town. Many were multipurpose public buildings used for other meetings and events when court was not in session; they lacked offices, document storerooms, and other specialized spaces that became standard in later courthouse designs. Particularly in the first few decades following the Revolution, people did not associate the legal system with courthouses or other specifically designated public structures; most legal proceedings were conducted elsewhere.23 In fact, the practice of law moved around promiscuously, following the officials who oversaw it and going to the people it served. When people had a complaint, they initiated the legal process by going to find a magistrate—the official who presided at the first, busiest level of the legal system. Magistrates heard complaints when and where they received them, in the fields where they had been working or even from the beds where they had been sleeping. Then they held hearings and trials in convenient spots that could accommodate a crowd— taverns, country stores, front porches, a room in the magistrate’s house if large enough or, if not, under a canopy of trees outside.24 The law’s proximity was conceptual as well as physical. People of all kinds approached law with an air of proprietary familiarity, assuming that they could use 22. Id. at 8–13, 29–40. 23. Id. at 67–68, 205–19. The analysis draws on scholarship on the evolution of courthouses and the cultural implications of their architectural design. See CARL L. LOUNSBURY, THE COURTHOUSES OF EARLY VIRGINIA (2005); MARSHA J. MCNAMARA, FROM TAVERN TO COURTHOUSE 1658–1860 (2004); see also VERNON, supra note 7 (noting similar trends in England, with the construction of town halls and other government buildings were linked to changes that formalized the political process). 24. EDWARDS, supra note 5, at ch. 3. Assembled_Issue_3 v5 (Do Not Delete) 2/22/2012 9:07 AM