Deciding against conciliation: The nineteenth-century rejection of a European transplant and the rise of a distinctively American adeal of adversarial adjudication

Theoretical Inquiries in Law

Volumn 10, Issue 2, 2009, Pages

  Kessler, Amalia D ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 68349123485     PISSN: None     EISSN: 15653404     Source Type: Journal    
DOI: None     Document Type: Article

References (254)

1. MIRJAN R. DAMASKA,THE FACES OF JUSTICE AND STATE AUTHORITY:A COMPARATIVE APPROACH TO THE LEGAL PROCESS (1991).
2. See, e.g. ,1 DAN FENNO HENDERSON, CONCILIATION AND JAPANESE LAW:TOKUGAWA AND MODERN 15-44, 127-81 (1965);
3. Takeyoshi Kawashima, Dispute Resolution in Contemporary Japan, in LAW IN JAPAN:THE LEGAL ORDER IN A CHANGING SOCIETY 41 (Arthur Taylor Von Mehren ed., 1963); William S. Laufer & Iwao Taka, Japan, Regulatory Compliance, and the Wisdom of Extraterritorial Social Controls,18 HASTINGS INT'L &COMP.L.REV. 487, 504-06 (1995).
4. Kawashima, supra note 2, at 43.
5. Id.
6. Id. at 52-53.
7. Id. at 50.
8. John Owen Haley, The Myth of the Reluctant Litigant,4J. JAPANESE STUD. 359, 378 (1978);
9. see also J. Mark Ramseyer, Reluctant Litigant Revisited: Rationality and Disputes in Japan,14J.JAPANESE STUD. 111, 111-23 (1988).
10. Haley, supra note 7, at 378.
11. See, e.g., Richard D. Schwartz, Social Factors in the Development ofLegal Control: A Case Study of Two Israeli Settlements,63 YALE L.J. 471, 471-91 (1954);
12. Ronen Shamir, The Comrades Law ofHebrew Workers in Palestine: A Study in Socialist Justice,20LAW &HIST.REV. 279, 279-305 (2002).
13. There is a difference, moreover, between a society's desire to adopt informal methods of dispute resolution (including conciliation) and its ability successfully to do so. A closer reading of the evidence may well show that whatever a society's reasons for seeking to embrace conciliation, the technique proves successful only to the extent that disputants can be persuaded to defer to the judge's authority and that this, in turn, is most likely to occur in close-knit communities marked by clear, deeply embedded social hierarchies. Along these lines, it is striking that the French conciliation courts were directly descended from (and in many ways replicated) the seigneurial courts of the corporatist Old Regime. Antoine Follain, De la justice seigneuriale a la justice de paix, in UNE JUSTICE DE PROXIMITE: LA JUSTICE dE PAIX, 1790-1958, at 33 (Jacques-Guy Petit ed., 2003).
14. Likewise, according to Ronen Shamir, whatever the intentions behind the creation of the Comrades Law system of 1920s Palestine, it quickly became "an instrument of discipline and control." Shamir, supra note 9, at 291.
15. LAWRENCE M. FRIEDMAN,AHISTORY OF AMERICAN LAW 167-68 & n.1 (2005).
16. Proponents of ADR sometimes use the terms mediation and conciliation interchangeably. When used in this manner, conciliation (qua mediation) must be distinguished from the kinds of conciliation examined in this Article. Indeed, even to the extent that advocates of ADR distinguish between mediation and conciliation, they recognize a core commonality in these processes that distinguishes them from the form of conciliation considered below - namely, a shared concern with promoting party autonomy and self-determination.
17. See, e.g. ,KATHERINE VAN WEZEL STONE,PRIVATE JUSTICE:THE LAW OF ALTERNATIVE DISPUTE RESOLUTION 6-7 (2006)
18. (describing both mediation and conciliation as efforts by a neutral third party to encourage the disputants freely to embrace a negotiated compromise, but characterizing mediation as a more formal, structured process).
19. Amalia D. Kessler, Enforcing Virtue: Social Norms and Self-Interest in an Eighteenth-Century Merchant Court,22LAW &HIST. REV. 71, 83 n.45 (2004);
20. Alan Scott Rau, Federal Common Law and Arbitral Power,8NEV. L.J. 169, 189-92 n.67 (2007).
21. Kawashima, supra note 2, at 50.
22. Id.
23. JOHN DINWIDDY,BENTHAM 14 (1989) (describing Bentham's early-nineteenth- century efforts to persuade President Madison that he should be permitted to draft a comprehensive code for the United States, as well as subsequent attempts to persuade individual governors that he should do the same for each individual state).
24. See the useful summary in George Fisher, The Jury's Rise as Lie Detector, 107 YALE L.J. 575, 659-60 (1997).
25. -2HENRY PETER BROUGHAM,SPEECHES OF HENRY LORD BROUGHAM,UPON QUESTIONS RELATING TO PUBLIC RIGHTS,DUTIES, AND INTERESTS 287-88 (Edinburgh, Adam & Charles Black et al. 1838);
26. Paul D. Carrington, "Substance" and "Procedure" in the Rules Enabling Act, 1989 DUKE L.J. 281, 299 & n.123;
27. Michael Lobban, Henry Brougham and Law Reform, 115 ENGLISH HIST.REV. 1186 & n.3 (2000). Brougham, in turn, was highly influential among contemporary American law reformers. Robert W. Gordon, Book Review, 36 VAND.L.REV. 431, 435 n.22 (1983).
28. Thomas C. Grey, Accidental Torts,54VAND.L.REV. 1225, 1239-40 & n.32 (2001). This included the merger of law and equity, the elimination of equity's written, secrecy-oriented approach to taking testimony, and the abandonment of witness competency rules. Lobban, supra note 18, at 1186 & n.3.
29. Bentham's views of the conciliation court are also worthy of serious consideration - and provide a useful entry point for discussion - for the simple reason that the depth and prescience of his analysis of the relationship between procedure and broader questions of social structure and governance were unparalleled in his era.
30. JEREMY BENTHAM,BENTHAMIANA:OR SELECT EXTRACTS FROM THE WORKS OF JEREMY BENTHAM 67 (John Hill Burton ed., Edinburgh, William Tait 1843).
31. This literature had challenged growing claims to royal absolutism by positing an ancient past of democratic self-rule that preceded the rise of monarchical authority. Because it thus glorified primitive, Germanic liberties, it was consonant with the romantic, nationalist tendencies of Bentham's own age.
32. JEREMY BENTHAM,ATREATISE ON JUDICIAL EVIDENCE 4(Etienne Dumont ed., London, Baldwin, Cradock & Joy 1825).
33. Id.
34. Id. at 5.
35. Id. at 5-6.
36. Id. at 6.
37. Id.
38. -6 JEREMY BENTHAM, Rationale of Judicial Evidence, Specially Applied to English Practice, in The WORKS OF JEREMY BENTHAM 326 (John Bowring ed., Edinburgh, William Tart 1843).
39. Isaak Meier, Mediation and Conciliation in Switzerland, in GLOBAL TRENDS IN MEDIATION 371,373 (Nadja Alexander ed., 2d ed. 2006);
40. Annemarie Hjer Pedersen, "Skranker for Lovtraskkeriets Krumveie": De Danske Forligskommissioner Deres Nedlaaggelse Og Genopstaen? 10-14 (Mar. 2005)
41. (unpublished M.A. Thesis, Copenhagen University) (on file with author);
42. Vibeke Vindel0v, Mediation, in Danish Law: In Retrospect and Perspective, in GLOBAL TRENDS IN MEDIATION, supra, at 123, 124; Annie J. de Roo & Robert W. Jagtenberg, The Dutch Landscape of Court-Encouraged Mediation, in GLOBAL TRENDS IN MEDIATION, supra, at 279,281-82.
43. In arguing that conciliation courts approximated the ideal type of natural procedure that he so eagerly sought to propagate, Bentham also drew on a body of literature with which he, as the progenitor of the term "international law," was widely familiar namely, the literature on "the law of nations." Key among these works was the writing of Emerich de Vattel, who argued in language liberally copied by many - including prominent Americans such as James Kent and Henry Wheaton - that in relation to one another states operated in a kind of state of nature, unconstrained by the positive law of any sovereign power. in this state of nature, the primary method for resolving disputes - aside from warfare - was through mediation or compromise. EMERICH DE VATTEL,THE LAW OF NATIONS , or PRINCIPLES OF THE LAW OF NATURE APPLIED TO THE CONDUCT AND AFFAIRS OF NATIONS AND SOVEREIGNS 274-89 (Joseph Chitty & Edward D. Ingraham eds. & trans., Philadelphia, T. & J.W. Johnson 1852). Given this well-established view that procedure in a state of nature (or natural procedure) consists primarily of mediation or compromise, it is hardly surprising that Bentham identified conciliation courts, which aimed at precisely these goals, as the main embodiment of his ideal of natural procedure.
44. In a September 1809 letter, Aaron Burr, who was then assisting Etienne Dumont in editing Bentham's work, eagerly informed Bentham that he was soon to travel to Copenhagen, where he was to "see the father of the Comites Conciliateurs." Aaron Burr, Gottenberg, to Jeremy Bentham, 13 September 1809, in 8THE CORRESPONDENCE OF JEREMY BENTHAM 44 (2000).
45. This was a reference to Christian Colbj0rnsen, a leading jurist of the Kingdom of Denmark, and the man responsible for creating the conciliation courts. Whether Burr ultimately succeeding in meeting with colbj0rnsen is unfortunately unclear, but as he recorded in his journal in November 1809, he did manage to meet Andreas Bj0rn Rothe, the author of a leading German publication on the Danish conciliation courts, and to discuss with him "committees, councils, etc." 1 AARON BURR, Journal (Nov. 8, 1809),
46. in THE PRIVATE JOURNAL OF AARON bURR,DURING HIS RESIDENCE OF FOUR YEARS IN EUROPE, WITH SELECTIONS FROM HIS CORRESPONDENCE 319 (Matthew L. Davis ed., N.Y., Harpers & Brothers 1838). Given Burr's close association with Bentham at this time, it seems highly likely that Burr shared with Bentham the information that he acquired concerning these courts. Nonetheless, Bentham continued to search for relevant information. Thus, over ten years later, in 1822, Bentham asked an exiled Danish political writer and poet by the name of Peter Andreas Heiberg if he could identify a book in French concerning the Danish conciliation courts. Peter Andreas Heiberg to Jeremy Bentham (Apr. 20, 1822), in THE CORRESPONDENCE OF JEREMY BENTHAM,JANUARY 1822 to JUNE 1824, at 65 & n.1 (Catherine Fuller ed., 2000).
47. BENTHAM, supra note 23, at 63
48. -2 JEREMY BENTHAM, Principles of Judicial Procedure, with the Outlines of a Procedural Code, in THE WORKS OF JEREMY BENTHAM 47 (Russell & Russell 1962)(1838).
49. -9 JEREMY BENTHAM, Constitutional Code, in THE WORKS OF JEREMY BENTHAM, supra note 34, at 620. Bentham oddly argued that the conciliation courts originated in Denmark and were then transplanted elsewhere, including France. Id. at 483. As it is not clear why he would have believed this, it is possible that he made this claim in an effort to distance the institution (aspects of which he so admired) from its actual origins in a revolution that had come to be widely viewed in England as synonymous with dangerous mob rule.
50. Id. at 620.
51. BENTHAM, supra note 23, at 7.
52. Id. at 63.
53. Id. at 62.
54. Id.
55. Id. at 63.
56. BENTHAM, supra note 29, at 327.
57. Id.
58. BENTHAM, supra note 23, at 63.
59. BENTHAM, supra note 35, at 620. True to an early-modern perspective that persisted well into the nineteenth century, Bentham conceived of the domestic sphere as extending well beyond the nuclear family to encompass the entirety of the household as a productive economic unit. Accordingly, as he used the term, "family differences" included not only disputes between husband and wife or parent and child, but also those between other close relatives "inhabiting the same household" and between "employer and helper, in any business, especially if inhabiting the same household." Id. (emphases removed). But while Bentham's pre-modern view of the family meant that he envisioned a wider role for conciliation courts than his use of the term "family differences" might initially suggest, this role was nonetheless fairly restricted.
60. BENTHAM, supra note 29, at 366.
61. BENTHAM, supra note 23, at 8.
62. ANTHONY CRUBAUGH,BALANCING THE SCALES OF JUSTICE:LOCAL COURTS AND RURAL SOCIETY IN SOUTHWEST FRANCE, 1750-1800, at 132, 141 (2001). Only litigants claiming more than 50 livres could appeal. GEORGE MARTIN,LES JUSTICES DE PAIX EN FRANCE: MANUEL PRATIQUE DES JUGES DE PAIX, PRECIS RAISONNE ET COMPLET DE LEURS ATTRIBUTIONS JUDICIAIRES, EXTRAJUDICIAIRES, CIVILES, ADMINISTRATIVES, DE POLICE ET D'INSTRUCTION CRIMINELLE EN SUITE DE TOUS LES CHANGEMENTS DE LEGISLATION 2 (Paris, Garnier freres 1880).
63. CRUBAUGH, supra note 48, at 135-36; Richard M. Andrews, The Justices of the Peace of Revolutionary Paris, September 1792-November 1794 (Frimaire Year III), 52 PAST &PRESENT 56, 58-61 (1971).
64. JEREMY BENTHAM, De l'organisation judiciaire, et de la codification, in 3(EUVRES DE J. BENTHAM, JURISCONSULTE ANGLAIS 50 (Etienne Dumont ed., Brussels, L. Hauman et compagnie 1829-30).
65. Id. at 51.
66. In reality, as Bentham often emphasized, the high cost of technical procedure meant that inequalities in wealth continued to matter.
67. BENTHAM, supra note 50, at 51.
68. Id.
69. Id.
70. REPORT OF tHE DEBATES AND PROCEEDINGS OF tHE CONVENTION fOR tHE REVISION OF THE CONSTITUTION OF THE STATE OF NEW YORK 11 (William G. Bishop & William H. Attree eds., Albany, Evening Atlas 1846) (art. VI, § 23) [hereinafter REPORT OF THE DEBATES].
71. Id. at 589.
72. That Brougham played such a significant role in promoting conciliation courts in England (and indirectly) in the United States may be surprising to many legal scholars because he is widely remembered as a champion of zealous advocacy - of the principle, in other words, that a lawyer's duty is to place the (adversarial) vindication of his client's interests over and above all other, more public-minded concerns. See, e.g., Norman W. Spaulding, The Myth of Civic Republicanism: Interrogating the Ideology of Antebellum Legal Ethics,71FORDHAM L. REV. 1397, 1420 & n.90 (2003);
73. Fred C. Zacharias & Bruce A. Green, Conceptualizing Advocacy Ethics,74 GEO.WASH.L.REV. 1, 2-3 (2005). But as one scholar has recently suggested - and as Brougham's advocacy of conciliation courts would seem to confirm - this traditional portrait of the chancellor may well be overdrawn. Monroe H. Freedman, Henry Lord Brougham, Written by Himself,19GEO.J.LEGAL ETHICS 1213, 1213-19(2006).
74. Lobban, supra note 18, at 1184-85, 1204.
75. BROUGHAM, supra note 18, at 408.
76. Id.
77. Id. at 408, 523-24.
78. In 1867, shortly before Brougham's death, legislation was enacted that authorized the establishment of "Equitable Councils of Conciliation and Arbitration," modeled significantly on the French labor courts, which were themselves widely viewed as a kind of conciliation court. Such councils were, however, never established, and this legislation came to be regarded as a failure. L.L. Price, The Position and Prospects of IndustrialConciliation, 53 J. ROYAL STAT.SOC'Y 420,422 (1890);
79. TRANSACTIONS OF THE NATIONAL ASSOCIATION FOR THE PROMOTION OF SOCIAL SCIENCE,BIRMINGHAM MEETING, 1868, at 472 (Andrew Edgar ed., London, Longmans, Green, Reader & Dyer 1869).
80. Lauding Brougham, an article in the Edinburgh Review observed that conciliation courts had "been tried in many countries," and that while in some this "experiment has not succeeded, in others, as Switzerland, Denmark, and Hamburgh, its success has been prodigious." Art. VIII. - Abstract of the Bill for Establishing Courts of Local Jurisdiction. - Ordered by the House of Commons to be Printed 21st June, 1830, 102 EDINBURGH REV. 478, 495 (1830).
81. This article was itself then cited and discussed in the prominent English publication, the Law Magazine, or Quarterly Review of Jurisprudence. Lord Brougham's Local Court Bill, with Full Particulars Relating to the Inferior Courts of Scotland, and the Continental Courts of Conciliation,4LAW MAG. ORQ. REV.JURISPRUDENCE 1, 36-37 (1830).
82. See also Literary Intelligence: The Law Magazine and Quarterly Review of Jurisprudence, No. XI, London - Saunders and Benning, 3 U.S. L. INTELLIGENCER &REV. 225, 225 (1831)
83. discussing the aforementioned piece in the Law Magazine, or Quarterly Review of Jurisprudence). For a discussion of the Edinburgh Review's readership on both sides of the Atlantic, see Joanne Shattock, Spheres of Influence: The Quarterlies and Their Readers,10Y.B. ENG.S TUD.: LITERATURE &ITS AUDIENCE 95, 95-104(1980).
84. MORTON J. HORWITZ,THE TRANSFORMATION OF AMERICAN LAW, 1780-1860, at140-59 (1977).
85. PERRY MILLER,THE LIFE OF THE MIND IN AMERICA:FROM THE REVOLUTION TO THE CIVIL WAR 96-116 (1st ed. 1965);
86. RICHARD E. ELLIS,THE JEFFERSONIAN CRISIS: COURTS AND POLITICS IN THE YOUNG REPUBLIC 111-22 (1971).
87. JESSE HIGGINS,SAMPSON AGAINST THE PHILISTINES, OR,THE REFORMATION OF LAWSUITS:AND JUSTICE MADE CHEAP,SPEEDY, AND BROUGHT HOME TO EVERY MAN'S DOOR:AGREEABLY TO THE PRINCIPLES OF THE ANCIENT TRIAL BY JURY, BEFORE THE SAME WAS INNOVATED BY JUDGES AND LAWYERS 31 (Philadelphia, B.Graves 2d ed. 1805).
88. Id. at 32.
89. -1JEAN-PIERRE CATTEAU-CALVILLE, TABLEAU DES ETATS DANOIs, ENVISAGES SOUS LES RAPPORTS DU MECANISME SOCIAL 298 (Paris, Treuttel et Wurtz 1802).
90. SYDNEY SMITH, Catteau, Tableau des etats danois (Edinburgh Review, 1803), in THE WORKS OF THE REVEREND SYDNEY SMITH 270 (Boston, Phillips, Sampson &co. 1858).
91. From the Present State of Denmark, by Catteau, 1802,WKLY.VISITOR, or LADIES' MISCELLANY (N.Y.), June 29, 1805, at 5.
92. Tribunal of Conciliation,ENQUlRER (Richmond), July 5, 1805, at 3.
93. From the Present State of Denmark, by Catteau, 1802,SUFFOLK GAZ. (Sag Harbor, N.Y.), July 22, 1805, at 1.
94. Extract from the Present State of Denmark, by Catteau, Written in 1802,POL. OBSERVATORY (Walpole, N.H.), Aug. 3, 1805, at 4.
95. Historical Extract from the Present State ofDenmark, by Catteau, Written in 1802, GREEN MOUNTAIN PATRIOT (Peacham, Vt.), May 13, 1806, at 1.
96. Extract from the Present State of Denmark, by Catteau, Written in 1802,POST-BOY (Windsor, Vt.), June 3, 1806, at 172.
97. Tribunal ofConciliation, supra note 72, at 3.
98. See, e.g., Art. I: Danmarks og Hertugdommenes Statsret med stadigt Hensyn til dens aeldere horfatning, ved Joh. Fred. Wilhelm Schlegel, etc.,27N.AM.REV. 285, 299 (1828)
99. (observing that "experience has shown [the Danish conciliation courts] to be very useful in checking the spirit of litigation"); Art. V: Memoire sur l'origine et l'organisation des committes conciliateurs en Dannemarc, par A. B. Rothe, Copenhague, 1803, 16 mo., pp. 126, 102 N. AM.REV. 135, 135-46 (1866);
100. A Hint on Law Suits,ALMONER:A PERIODICAL RELIGIOUS PUBLICATION (Lexington, Ky.), Sept. 1, 1814, at 144 (quoting and discussing the Edinburgh Review article concerning catteau-callville's book). conciliation courts, or as he called them, "parish court[s] of mutual agreement," also received very favorable treatment in the Scotsman Samuel Laing's 1836 account of his travels in Norway. SAMUEL LAING, JOURNAL OF A RESIDENCE IN NORWAY DURING THE YEARS 1834, 1835, AND 1836;
101. MADE WITH A VIEW TO INQUIRE INTO THE MORAL AND POLITICAL ECONOMY OF THAT COUNTRY, AND THE CONDITION OF ITS INHABITANTS 218 (London, Longman, Rees, Orme, Brown, Green & Longman 1836) (arguing, inter alia, that Norway "should be grateful" to its former Danish rulers for having established these courts). Laing's account, in turn, was widely praised in the English press and, according to Laing himself, was particularly well received by English Liberals (and thus by men like Brougham). Bernard Porter, Virtue and Vice in the North: The Scandinavian Writings of Samuel Laing,23ScAND.J.HlST. 153, 164 (1998).
102. HENRY M. BAIRD,THE LIFE OF THE REVEREND ROBERT BAIRD, D.D. 200-07, 287-88 (N.Y., Anson D.F. Randolph 1866).
103. Lecture on Norway, Sweden, and Denmark by Dr. Baird,FRlENDS'WKLY. INTELLIGENCER (Philadelphia), May 9, 1846, at 41;
104. The World Abroad, Lectures on Europe by the Rev. Dr. Baird: No. 3, Russia (Continued) - Scandinavia - Holland - Belgium - Germany,SATURDAY EVENING POST (Philadelphia), May 12, 1849, at 2;
105. Original Lectures, Rev. Dr. Baird's Historical Lectures on Europe: The Scandinavian Countries, Norway, Sweden, Denmark, and Germany,SATURDAY EVENING POST (Philadelphia), May 25, 1850, at 2 [hereinafter Original Lectures].
106. JAMES Q. WHITMAN,THE LEGACY OF ROMAN LAW IN THE GERMAN ROMANTIC ERA: HISTORICAL VISION AND LEGAL CHANGE 18-19 (1990).
107. Original Lectures, supra note 80.
108. As late as the American Revolution, many Quakers drew ire for their refusal to provide military service on behalf of the newly constituted continental congress. Sydney V. James, The Impact of the American Revolution on Quakers' Ideas About Their Sect,1 9WM.&MARY Q. 3d SER. 360, 371-72 (1962).
109. JEROLD S. AUERBACH,JUSTICE WITHOUT LAW?NON-LEGAL DISPUTE SETTLEMENT IN AMERICAN HISTORY 49-57 (1983).
110. When the New Jersey Constitutional Convention met in 1844 to discuss, among other things, civil justice reform, it seriously considered - though ultimately rejected - the possibility of establishing conciliation courts modeled expressly on those of Europe. JOURNAL OF THE PROCEEDINGS OF THE CONVENTION TO FORM A CONSTITUTION FOR THE GOVERNMENT OF THE STATE OF NEW JERSEY 63, 79-80, 87, 198 (Trenton, N.J., Franklin S. Mills 1844). Given, however, the cursory nature of the published record of the proceedings, it is unfortunately unclear why the proposed legislation failed.
111. Lecture on Norway, Sweden, and Denmark byDr. Baird, supra note 80.
112. REPORT OF THE DEBATES, supra note 56, at 833. Likewise, delegate Swackhamer quoted an article penned by Mr. Weed of the Albany Evening Journal that specifically called on the Constitutional Convention to establish conciliation courts. In Mr. Weed's words, "We have felt, ever since the subject of Constitutional Reform was broached, a strong desire to urge the consideration of Conciliation Courts upon the Convention." Id. at 611-12.
113. Id. at 588.
114. Id. (quoting from the proposal to establish conciliation courts that was debated by the New Jersey Constitutional Convention of 1844).
115. Id. (quoting from the New Jersey proposal).
116. Id. at 589.
117. Id. at 799.
118. In particular, the Convention agreed on the importance of eliminating proceedings before masters and examiners. This was, in part, to avoid the high costs associated with such proceedings, but also because there was great distaste for the fact that they had traditionally taken place outside of public view. Id. at 14.
119. Significantly, however, Bentham advocated for secret proceedings only in familial disputes. In contrast, advocates of conciliation courts at the Convention argued for such secrecy regardless of the subject matter of the dispute.
120. REPORT OF THE DEBATES, supra note 56, at 588 (quoting from the New Jersey proposal).
121. Id. at 658.
122. Id.
123. Id. at 589.
124. Id.
125. Id. at 588.
126. Id. at 588 (Kirkland);
127. Id. at 611 (Swackhamer).
128. Id. at 589.
129. Id. (Worden).
130. Id. at 612. Likewise, in arguing for the establishment of conciliation courts, delegate Swackhamer asserted that "[t]he supreme law giver had not thought it unworthy his high office to hold out inducements to invite men to upright and neighborly conduct towards each other." Id. at 612.
131. Id. at 658.
132. BRUCE LAURIE,ARTISANS INTO WORKERS:LABOR IN NINETEENTH-CENTURY AMERICA 25-28 (1989);
133. SEAN WILENTZ,CHANTS DEMOCRATIC: NEW YORK CITY AND THE RISE OF THE AMERICAN WORKING CLASS, 1788-1850, at 109-10 (1984).
134. LAURIE, supra note 106, at 28-43.
135. Id. at 47-112; WlLENTZ, supra note 106.
136. PAUL E. JOHNSON,A SHOPKEEPER'S MILLENIUM:SOCIETY AND REVIVALS IN ROCHESTER,NEW YORK, 1815-1837, at 16 (1978);
137. DONALD HUGH PARKERSON, THE AGRICULTURAL TRANSITION IN NEW YORK STATE :MARKETS AND MIGRATION IN MID- NINETEENTH-CENTURY AMERICA 3-23 (1995).
138. JOHNSON, supra note 109, at 9.
139. REPORT OF THE DEBATES, supra note 56, at 658-59.
140. Id. at 659.
141. AUERBACH, supra note 84, at 33, 101-02.
142. REPORT OF tHE DEBATES, supra note 56, at 659.
143. Id. at 589.
144. Id.
145. Id.
146. Id. at 738.
147. Id.
148. Id. at 593.
149. Id. at 589.
150. Id.
151. Id. at 799.
152. Id. at 590.
153. Id. at 800.
154. Id. at 611.
155. FRANCIS LIEBEr,ON CIVIL LIBERTY AND SELF-GOVERNMENT 229-30 (Theodore D. Woolsey ed., Philadelphia, Lippincott 3d ed. 1875) (1853).
156. Id. at 231.
157. Id. at 229.
158. Id.
159. CHARLES M. COOK,THE AMERICAN CODIFICATION MOVEMENT:ASTUDY of ANTEBELLUM LEGAL REFORM 69-118 (1981).
160. JOHN ARKAS HAWGOOD,THE TRAGEDY OF GERMAN-AMERICA:THE GERMANS in tHE UNITED STATES of AMERICA DURING THE NINETEENTH CENTURY-AND AFTER 239 (Arno Press 1970) (1940).
161. HORWITZ, supra note 65, at 140-59.
162. But see Carli N. Conklin, Transformed, Not Transcended: The Role of Extrajudicial Dispute Resolution in Antebellum Kentucky and New Jersey,48AM.J.LEGAL HIST. 39, 39-98 (2006) (arguing that until the Civil War, the legislatures and courts of both Kentucky and New Jersey continued to uphold extrajudicial dispute resolution).
163. Delegates Kirkland, Worden, and Bascom (arguing for conciliation courts), and Jordan and Brown (arguing against) were all lawyers and all members of the Judiciary Committee. 2 CHARLES Z. LINCOLN,THE CONSTITUTIONAL HISTORY OF NEW YORK:FROM THE BEGINNING OF THE COLONIAL PERIOD TO THE YEAR 1905, SHOWING THE ORIGIN, DEVELOPMENT, AND JUDICIAL CONSTRUCTION OF THE CONSTITUTION 140 (1906).
164. See also 3JabezD. Hammond,POLITICAL HISTORY OF THE STATE OF NEW YORK, fROM JAN. 1, 1841, to Jan. 1, 1847, at 622 (Syracuse, N.Y., L.W. Hall 1852).
165. REPORT OF THE DEBATES, supra note 56, at 799.
166. Id. at 813.
167. Id.
168. Id. at 11 (art. vi, § 23 of the 1846 constitution).
169. The possibility that, as Bentham had insisted, parties might be persuaded voluntarily to consent to proposed compromises that were, in fact, contrary to both their interests and the formal letter of the law had been raised by those delegates opposing conciliation courts, but was never definitively resolved.
170. The New York Observer and Chronicle cited a report from the Journal of Commerce that the chamber of commerce had "referred to a committee to consider and report upon the expediency of memorializing the legislature to create a Court of Conciliation in [New York] [C]ity, for commercial purposes. " Domestic: Court of Conciliation, N.Y. OBSERVER &CHRON., Apr. 10, 1847, at 59.
171. D.M. Mahon, Tribunals of Conciliation,CHRlSTlAN INQUIRER (N.Y.), Sept. 18,1852, at 1.
172. An Observer, Litigation,6CuLTlVATOR (Albany), Oct. 1849, at 315.
173. A GoodRecommendation,SATURDAY EVENING POST (Philadelphia), Feb. 9,1850, at 2. Thereafter, in January 1856, Governor Myron Clark urged the adoption of courts of conciliation, whose "beneficent workings," he claimed, had been well established by "[t]he experience of other countries." Governor's Message, N.Y. DAILY TIMES, Jan. 17, 1856, at 2. In such institutions, he claimed, the "[m]isapprehension of rights, and the conflict of interests among neighbors, by conciliating intervention are amicably adjusted." Id.
174. S. Lindsey, A Court of Conciliation,BosTON CULTIVATOR, Mar. 30, 1850, at 101.
175. STEVEN H. STEINGLASS &GINO J. SCARSELLI,THE OHIO STATE CONSTITUTION:A REFERENCE GUIDE 193 (2004)
176. (discussing art. IV, § 19 of the Ohio Constitution of 1851); Small Claims and Conciliation Court: Hearings Before the Comm. on D.C., First Sess. on S. 1835
177. ("A Bill Establishing a Small Claims and Conciliation Branch in the Municipal Court of D.C. for Improving the Administration of Justice in Small Cases and Providing Assistance to Needy Litigants, and for Other Purposes"), 75th Cong. 70 (1937) [hereinafter Small Claims and Conciliation Court].
178. Frank Ravitch, The Four Michigan Constitutions, in THE HISTORY OF MICHIGAN LAW 134 & n.81 (Paul Finkelman & Martin J. Hershock eds., 2006) (discussing art. VI, § 23 of the Michigan Constitution of 1850);
179. Small Claims and Conciliation Court, supra note 145, at 70.
180. WILLIAM WHEELER THORNTON,THE GOVERNMENT OF THE STATE OF INDIANA, fOR USE IN THE PUBLIC SCHOOLS 223 (Terre Haute, Ind., Inland Publishing Co. 1898) (setting forth art. VII, § 134 of the Indiana Constitution of 1851); Small Claims and Conciliation Court, supra note 145, at 70.
181. Small Claims and Conciliation Court, supra note 145, at 70 (discussing the Wisconsin Constitution of 1847); JohnB. Winslow, Tribunals of Conciliation, in 10 REPORT OF THE PROCEEDINGS of tHE MEETINGS OF THE STATE BAR ASSOCIATION OF WISCONSIN, fOR THE YEARS 1912 - 1913 - 1914, at 206 (1915). Interestingly, the Wisconsin Constitution did not simply authorize the legislature to create conciliation courts, but in fact required it to do so. The legislature, however, evidently ignored this constitutional provision. Winslow, supra, at 206.
182. CONSTITUTION OF THE STATE OF CALIFORNIA 540-41 (W.F. Henning ed., L.A., Chas. W. Palm Co. 2d ed. 1899) (setting forth art. VI, § 13 of the California Constitution of 1849).
183. Small Claims and Conciliation Court, supra note 145, at 70 (discussing the North Dakota Constitution of 1893).
184. Indiana and North Dakota both adopted conciliation courts, but these quickly failed. As established on June 11, 1852, the indiana conciliation courts were expressly designed to settle cases "according to conscience and right, without regard to technical rules." J.H. BINFORD,HISTORY OF HANCOCK COUNTY INDIANA,FROM ITS EARLIEST SETTLEMENT BY THE "PALE FACE" in 1818 DOWN to 1882, at 392 (Greenfield, Ind., King & Binford 1882). Conciliation proceedings were available, however, only in a relatively narrow class of cases and, moreover, were strictly voluntary. Winslow, supra note 148, at 224. As these courts were evidently not well received by the public, they were abolished in November 1865. BINFORD, supra,at 392-93;
185. THE HISTORY OF INDIANA LAW 259 (David J. Bodenhamer & Hon. Randall T. Shepard eds., 2006);
186. Winslow, supra note 148, at 224. Similarly, North Dakota established conciliation courts in 1893, shortly after its admission to statehood. Such conciliation proceedings, however, were to be brought only after a formal lawsuit had been commenced and, as established by an 1895 statute, upon the consent of both parties. These courts thus rapidly fell into disuse. Small Claims and Conciliation Court, supra note 145, at 70;
187. Eric H. steele, The Historical Context ofSmall Claims Courts,6 AM.B.FOUND.RES. J. 293, 312 (1981); Winslow, supra note 148, at 224.
188. Adjournment of the Legislature, N.Y. EVANGELIST, May 20, 1847, at 79 (noting that a "bill organizing courts of conciliation" was under consideration).
189. State Affairs: Courts of Conciliation, N.Y. DAILY TIMES, Jan. 29, 1855, at 1. According to this article, samuel Blatchford (later to become an associate justice of the u.s. supreme court) had proposed a bill to establish conciliation courts with "jurisdiction in cases of libel, slander, malicious prosecution, breach of promise of marriage, assault, battery, false imprisonment, and claims for debt not exceeding $100." State Affairs: Courts of Conciliation, supra, at 1. This language appears to have been largely, though not entirely, copied from the 1850 draft of the Field Code. See also Courts of Conciliation, N.Y. EVANGELIST, Feb. 15, 1855, at 26 (noting that legislation had been proposed).
190. -1DAVID DUDLEY FIELD, Final Report of the Practice Commission, December 31, 1849, in SPEECHES,ARGUMENTS AND MISCELLANEOUS PAPERS of DAVID DUDLEY FIELD 293 (A.P. Sprague ed., N.Y., D. Appleton & Co. 1884).
191. Id. at 294. The third commissioner, David Graham, dissented.
192. THE CODE OF CIVIL PROCEDURE OF THE STATE OF NEW-YORK,REPORTED BY THE COMMISSIONERS ON PRACTICE AND PLEADING 642 (Albany, Weed, Parsons & Co. 1850) (comments on Tit. VII, concerning "Proceedings in the Courts of Conciliation") [hereinafter CODE OF CIVIL PROCEDURE].
193. Id. at 642 (quoting from Rogron, Les codes francais expliques).
194. Id. at 643 (Tit. VII, §§ 1528, 1530).
195. Id. at 644 (Tit. VII, § 1532).
196. See, for example, the (failed) proposal by delegate John L. Russell, a lawyer from St. Lawrence County. REPORT OF THE DEBATES, supra note 56, at 836.
197. CODE OF CIVIL PROCEDURE, supra note 156, at 641.
198. Id. at 641, 642 (Tit. VII, § 1523).
199. Document no. 72, Feb. 14, 1862, of the Comm. of the Judiciary, on the B. Entitled 'An Act to Establish a Tribunal of Conciliation in the County of Delaware,' in 4DOCUMENTS OF THE ASSEMBLY OF THE STATE OF NEW YORK,ElGHTY-FlFTH SESSION, 1862, at 1 (Albany, Charles Van Benthuysen 1862).
200. Id.
201. Id. at 2.
202. An Act to Establish a Tribunal of Conciliation in the Sixth Judicial District, in 4STATUTES AT LARGE OF THE STATE oF NEW YORK,COMPRISING THE REVISED STATUTES, AS THEY EXISTED ON THE 1st DAY OF JULY, 1862, at 603, 605 (John W. Edmonds ed., Albany, Weare C. Little 1863) (ch. 451, § 7).
203. Letter from Deborah Lambrecht, Records Management, Delaware County Clerk's Office, Delhi, New York to author (Oct. 12, 2007); E-mail from James
204. steele, supra note 151, at 305-13.
205. Id. at 334.
206. GEORGE R. BENTLEY,A HISTORY OF THE FREEDMEN'S BUREAU 25-26 (1955).
207. Id. at 16-25.
208. In discussing contemporary, Reconstruction-era discourse concerning freed people, I employ the term "freed men," as this was the one commonly used at the time. it bears emphasis, however, that, as a number of historians have recently argued, the story of the Reconstruction South cannot be told without taking into account the experience of freed women, along with that of freed men. See generally LESLIE A. SCHWALM,A HARD FIGHT FOR WE :WOMEN'S TRANSITION FROM SLAVERY TO FREEDOM IN SOUTH CAROLINA (1997);
209. LAURA F. EDWARDS,GENDERED STRIFE AND CONFUSION:THE POLITICAL CULTURE OF RECONSTRUCTION (1997).
210. United States War Department, Report of the American Freedmen's Inquiry Commission, New York, June 30, 1863, in CORRESPONDENCE, ORDERS, ETC., FROM JANUARY 1, 1863, to DECEMBER 31, 1863, SER. III, Vol.3, THE WAR OF THE REBELLION:A COMPILATION OF THE OFFICIAL RECORDS OF THE UNION AND CONFEDERATE ARMIES 448 (Joseph W. Kirkley & Fred C. Ainsworth eds., Washington, D.C., Gov. Printing Office 1899).
211. Id.
212. BENTLEY, supra note 170, at 152;
213. DONALD G. NIEMAN,TO SET tHE LAW IN MOTION: THE FREEDMEN'S BUREAU AND tHE LEGAL RIGHTS OF BLACKS, 1865-1868, at 5(1979).
214. BENTLEY, supra note 170, at 152.
215. AUERBACH, supra note 84, at 58;
216. BENTLEY, supra note 170, at 160;
217. James Oakes, A Failure of Vision: The Collapse of the Freedmen's Bureau Courts,25 CIVIL WAR HIST. 68 (1979);
218. PAUL SKEELS PEIRCE,THE FREEDMEN'S BUREAU:A CHAPTER IN THE HISTORY OF RECONSTRUCTION 144 (1904).
219. BENTLEY, supra note 170, at 160;
220. NIEMAN, supra note 175, at 11.
221. BENTLEY, supra note 170, at 152-54;
222. PEIRCE, supra note 177, at 144.
223. BENTLEY, supra note 170, at 152-54.
224. Id. at 152-54;
225. AUERBACH, supra note 84, at 58;
226. PEIRCE, supra note 177, at 144.
227. BENTLEY, supra note 170, at 160-62.
228. JOHN C. RODRIGUEZ, The Freedmen's Bureau and Wage Labor in the Louisiana Sugar Region, in THE FREEDMEN'S BUREAU AND RECONSTRUCTION 193, 202-05
229. (Paul A. Cimbala & Randall M. Miller eds., 1999);
230. FRANK A. ROLLIN,LIFE AND PUBLIC SERVICES OF MARTIN R. DELANY:SUB- ASSISTANT COMMISSIONER BUREAU OF REFUGEES, FREEDMEN, AND OF ABANDONED LANDS, AND LATE MAJOR 104th U.S. COLORED TROOPS 256 (Kraus Reprint 1969) (1868). 184 Art. V: Memoire sur l'origine et l'organisation des committes conciliateurs en Dannemarc, par A. B. Rothe, Copenhague, 1803, 16 mo., pp. 126, 102 N. AM.REV. 135 (1866) [hereinafter Art. V: Memoire sur l'origine].
231. NIEMAN, supra note 175, at 4, 103-15.
232. Id. at 107-15.
233. Id. at 143-47;
234. BENTLEY, supra note 170, at 162-63.
235. NIEMAN, supra note 175, at 119-21.
236. Id. at 221;
237. BENTLEY, supra note 170, at 165-67.
238. Art. V: Memoire sur l'origine, supra note 184, at 141.
239. Id. at 143.
240. Id. at 144.
241. Id.
242. Id.
243. Id. at 146.
244. Id. at 144-45.
245. Id. at 144.
246. Preface to THE FREEDMEN'S BUREAU AND RECONSTRUCTION, supra note 183, at ix.
247. NIEMAN, supra note 175, at 11.
248. EDWARDS, supra note 172, at 63-64, 97-98;
249. SCHWALM, supra note 172, at 260-68.
250. SCHWALM, supra note 172, 237-38.
251. AUERBACH, supra note 84, at 58-60;
252. PETER W. BARDAGLIO,RECONSTRUCTING THE HOUSEHOLD:FAMILIES,SEX, AND THE LAW IN THE NINETEENTH-CENTURY SOUTH 127 (1995);
253. NIEMAN, supra note 175, at 15-16. 203
254. AUERBACH, supra note 84, at 60.