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John Appleton of Maine and Commercial Law: Freedom, Responsibility, and Law in The Nineteenth Century Marketplace

Published online by Cambridge University Press:  28 October 2011

David M. Gold
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Extract

More than half a century ago, Walton H. Hamilton recognized the dual economic and moral spirit of the nineteenth century's ‘sense of individualism’ when he wrote that the legal maxim caveat emptor ‘served well its two masters, business and justice’. However, recent scholarship has captured only half that spirit. Historians have concentrated on business and attributed the way judges shaped the law of the marketplace to their desire to promote economic growth. James Willard Hurst, in his seminal Law and the Conditions of Freedom in the Nineteenth Century United States, posits ‘the release of individual creative energy’ as the ‘dominant value’ in American law for the first half or three-quarters of the nineteenth century, pointing to such developments as the judicial embellishment of ‘procedures and instruments to promote dealing at a distance and on credit’ in response ‘to the needs of a growing commerce’. Lawrence M. Friedman states that nineteenth century contract law was ‘attuned to the needs of a growing economy, at least as the leading judges read those needs’. Harold M. Hyman and William M. Wiecek credit the content of pre-Civil War contract law to the ‘developmental, entrepreneurial bias’ of antebellum judges. According to Bernard Schwartz, the job of American law, at least through the Civil War, was ‘to furnish the legal tools necessary for effective mobilization of the community's resources’. William E. Nelson, adding a class twist to the ‘developmental’ theme, writes that the law in the nineteenth century ‘came to be a tool by which those interest groups that had emerged victorious in the competition for control of law-making institutions could seize most of society's wealth for themselves and enforce their seizure upon the losers’.

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Articles
Information
Law and History Review , Volume 4 , Issue 1 , Spring 1986 , pp. 55 - 69
Copyright
Copyright © the American Society for Legal History, Inc. 1986

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References

1. Hamilton, Walton H., ‘The Ancient Maxim Caveat Emptor’, 40 Yale Law Journal 1133, 1186 (1931)CrossRefGoogle Scholar.

2. Hurst, J. Willard, Law and the Conditions of Freedom in the Nineteenth Century United States (Madison, Wisc., 1956) 7Google Scholar.

3. Ibid. at 13.

4. Friedman, Lawrence M., A History of American Law (New York, 1973) 467Google Scholar.

5. Hyman, Harold M. and Wiecek, William M., Equal Justice Under Law (New York, 1982) 41Google Scholar.

6. Schwartz, Bernard, The Law in America (New York, 1974) 86Google Scholar.

7. Nelson, William E., The Americanization of the Common Law (Cambridge, Mass., 1975) 174Google Scholar.

8. Horwitz, Morton J., The Transformation of American Law, 1780–1860 (Cambridge, Mass., 1977) 211Google Scholar.

9. Ibid. at 212.

10. Ironically, Horwitz's own explanation of the ‘rise of negotiability’ and other aspects of nineteenth-century commercial law has more to do with narrow self-interest than with values. In Horowitz's view, ‘the substantive rules and doctrines [judges] developed were primarily meant to protect those groups that stood to benefit from an expanding market economy’. Ibid.

Horwitz and many other modern scholars tend toward an old-fashioned ‘economic determinist’ view of legal history that slights the values associated with laissez-faire individualism. These values may have grown out of the class positions of those who shaped American law in the nineteenth century, as a Marxist might argue. But even Marxists would recognize that those who expounded these values believed in them as elements of a moral order. See, e.g., Marx, Karl, The Eighteenth Brumaire of Louis Bonaparte trans, by Paul, E. & Paul, C., (New York, 1926) 53–59Google Scholar; Thompson, E.P.Whigs and Hunters (New York, 1975) 258–69Google Scholar; Tushnet, Mark, ‘A Marxist Analysis of American Law’, Marxist Perspectives vol.1 (1978) 96Google Scholar.

11. Kennedy, Duncan, ‘Form and Substance in Private Law Adjudication’, 89 Harvard Law Review 1685, 1715 (1976)CrossRefGoogle Scholar.

12. Ibid. at 1726.

13. Ibid. at 1725.

14. Ibid. at 1728.

15. Ibid. at 1730.

16. Ibid. at 1728.

17. Atiyah, P. S., The Rise and Fall of Freedom of Contract (Oxford, 1979) 260Google Scholar.

18. On Appleton, see Gold, David M. ‘Chief Justice John Appleton’, Maine Historical Society Quarterly, xviii (1979) 193Google Scholar; Hamlin, Charles, ‘John Appleton’, in Great American Lawyers, 8 vols. (Philadelphia, 1908) v, 41Google Scholar; Gold, David Marcus, ‘John Appleton and Responsible Individualism in Nineteenth-Century Law’ (unpublished dissertation, Ohio State University, 1982)Google Scholar.

19. Appleton, John, The Rules of Evidence Stated and Discussed (Philadelphia, 1860)Google Scholar.

20. A.J. [Appleton, John], ‘Usury Laws’, 6 American Jurist and Law Magazine 282, 296–97 (1831)Google Scholar.

21. See Farrell v. Lovett, 68 Me. 326 (1878); infra notes 52–54 and accompanying text.

22. Capen v. Crowell, 66 Me. 283 (1877); Allen v. Inhabitants of Jay, 60 Me. 124 (1872); Opinions of the Justices, 58 Me. 590 (1871).

23. Opinions of the Justices, 58 Me. 590, 598 (1871). Appleton's devotion to individual liberty extended to noneconomic as well as economic matters. For example, he believed that ‘[government has no right to interfere with the religions of its citizens—it is entirely a question between them and their God’. X. Y. [John Appleton], ‘On the Admissibility of Atheists as Witnesses’, Yankee and Boston Literary Gazette, June 11, 1829, at 188, col. 1.

24. John Appleton, supra note 19 at 156–72.

25. Pike v. Dilling, 48 Me. 539 (1861).

26. See, e.g., Brightman v. Inhabitants of Bristol, 65 Me. 426 (1876); Lawler v. Baring Boom Co., 56 Me. 443 (1869).

27. See, e.g., Weymouth v. Giles, 72 Me. 446 (1881); True v. Plumley, 36 Me. 446 (1853).

28. 60 Me. 9 (1872).

29. Ibid. at 21.

30. Ibid. at 30. Despite his assertion that liberty of contract was ‘the highest policy’, Appleton never declared it constitutionally sacrosanct. Even in True he carefully noted that the contract in question had not run afoul of the statutes regulating telegraph companies. Ibid. at 29, 36.

31. Ibid. at 33.

32. A.J. [John Appleton], supra note 20 at 282, 294.

33. Kessler, Friedrich and Gilmore, Grant, Contracts (Boston, 2nd. ed., 1970) 3–4Google Scholar.

34. ‘Today we have retreated from this position. It is now more or less generally recognized that the “fault” upon which liability may rest is social fault, which may but does not necessarily coincide with personal immorality.’ Prosser, William L., Handbook of the Law of Torts (St. Paul, 4th. ed., 1971Google Scholar). Prosser of course was referring to tort law, but his observation has wider relevance.

35. See, e.g., Burbank v. McDuffee, 65 Me. 135 (1876); Inhabitants of Monson v. Inhabitants of Fairfield, 55 Me. 117 (1867); Wood v. Watson, 53 Me. 300 (1865). John Phillip Reid has noted that Appleton ‘became one of the famous judicial reformers of the nineteenth century on the strength of his battle to remove the incompetency of respondents [in criminal cases]. But even he did not think the courts could proceed without legislative authority.’ Chief Justice: The Judicial World of Charles Doe (Cambridge, Mass., 1967) 88Google Scholar.

36. 55 Me. 105 (1866).

37. Jellison v. Jordan, 68 Me. 373, 374 (1878).

38. See Appleton's opinion in Grows v. Maine Central Railroad, 67 Me. 100 (1877).

39. Farrell v. Lovett, 68 Me. 326, 328 (1878).

40. See Lawrence M. Friedman, supra note 4 at 233.

41. Appleton seems to have taken caveat emptor for granted. See, e.g., Farrell v. Lovett, 68 Me. 326 (1878); Huntingdon v. Hall, 36 Me. 501 (1853).

42. 69 Me. 57 (1879).

43. Ibid. at 59.

44. Young v. McGown, 62 Me. 56, 61 (1873).

45. York Cty. Mut. Fire Ins. Co. v. Brooks, 51 Me. 506, 507 (1863).

46. Hichborn v. Fletcher, 66 Me. 209, 211 (1877).

47. Mayo v. Hutchinson, 57 Me. 546, 547 (1870).

48. York Cty. Mut. Fire Ins. Co. v. Brooks, 51 Me. 506 (1863).

49. Hichborn v. Fletcher, 66 Me. 209 (1877).

50. Bankers Magazine observed in 1860 that ‘the promissory note has become the favorite negotiable paper, and in transactions for the purchase and sale of merchandise these instruments are the common and usual forms of settlement of accounts’. Quoted in Myers, Margaret G., A Financial History of the United States (New York, 1970) 89Google Scholar.

51. Lee v. Starbird, 55 Me. 491, 493 (1867).

52. Letter from John Appleton to Nathan Clifford (May 17, 1880), Nathan Clifford Papers, Maine Historical Society.

53. Railroad Co. v. National Bank, 102 U.S. 14, 33 (1880).

54. Farrell v. Lovett, 68 Me. 326, 331 (1878), quoting (inexactly) Moorehead v. Gilmore, 77 Pa. 118, 124 (1874).

55. 68 Me. 326 (1878).

56. Ibid. at 333.

57. Ibid. at 331, quoting (inexactly) Moorehead v. Gilmore, 77 Pa. 118, 124 (1874).

58. See Kellogg v. Curtis, 69 Me. 212 (1879).

59. Daniel, John W., A Treatise on the Law of Negotiable Instruments, 2 vols. (New York, 3rd. ed., 1885) i, 722Google Scholar.

60. Farrell v. Lovett, 68 Me. 326, 328 (1878).

61. 75 Me. 334 (1883).

62. Ibid. at 341.

63. Berry v. Dwinel, 44 Me. 255, 267 (1857).

64. Ibid. at 469.

65. Ibid. at 470.

66. Ibid. at 174–76 (Appleton, C.J., dissenting).

67. Smith v. Wedgwood, 74 Me. 457, 460 (1883).

68. 9 Ex. 341, 156 Eng. Rep. 145 (1854).

69. Lawrence M. Friedman, supra note 4 at 467.

70. Ibid. In another work, Friedman asserts that the court in Hadley ‘implied that the optimal mill-owner would not allow himself to be caught without a spare crank shaft. Avoidable consequences must be avoided by those with power to avoid them; it would distort the market system to allow an offender against this principle to cast his losses upon another party, since a market system required the penalties for bad planning of enterprise to fall upon those who planned badly.’ Contract Law in America (Madison, Wisc., 1965) 126–27Google Scholar. This is an interesting type of ‘fault’ analysis, but not one that Appleton would have been likely to accept. It defines fault in terms of economic efficiency rather than the conduct of the parties. Appleton would have agreed that the ‘penalties for bad planning’ ought to fall on the planner; they would have even if Hadley had gone the other way, for no one proposed that the defendant reimburse the plaintiff for the loss of profits up to the time of the breach. That loss, resulting from the plaintiff's bad planning, rightly fell upon the plaintiff. But once the plaintiff and defendant contracted for the delivery of a crank shaft at a particular time, economic efficiency became irrelevant. The question then was: Has the defendant failed to fulfill an obligation freely undertaken? If so, he is responsible for subsequent losses.

71. 38 Me. 361, 371 (1854).

72. 41 Me. 588 (1856).

73. Ibid. at 589 (emphasis added).

74. Thomas v. Dingley, 70 Me. 100 (1879).

75. Having accepted the Hadley-Bridges rule as a matter of precedent, Appleton readily acknowledged its economic advantages. In an opinion delivered the year after Freeman v. Morey, Appleton wrote, quoting Joseph Story, ‘I am satisfied that an allowance of damages, upon the basis of a calculation of profits, is inadmissible. The rule would be in the highest degee unfavorable to the interests of the community. The subject would be involved in utter uncertainty.’ Berry v. Dwinel, 44 Me. 255, 269 (1857).

76. Kennedy, supra note 11 at 1727.

77. Ibid.

78. Ibid. at 1726.

79. For an interesting exchange between mid-nineteenth-century British legislators in which a proponent and an opponent of limited liability both appealed to individualism, see Burn, W. L., The Age of Equipoise (New York, 1964) 221Google Scholar.

80. 39 Me. 35, 51 (1854).

81. 58 Me. 9 (1870).

82. Ibid. at 14.

83. Ibid. at 14–15.

84. Ibid. at 15.

85. Ibid. at 14.

86. Ibid. at 21.