Roger writing the LAWmag

Dreams of America's First Law Review, 1852

The Dream

Assume, for a moment, mid-1853, prison, Paris, France. You are a damn good American barrister far from home on a legal retainer to Paris.

The prison stay stems from a brillant legal argument that must of gone awry in the ears of the French judge, but on behalf of some American-French man who stood up in the middle of Paris and denounced Napoleon III. A really dumb move for the client when you consider that on November 22, 1852, the French announced the result of a referendum on the proposed emperor-ship of Napoleon III: 8-million Frenchmen for and 200,00-against.

As the bailiff led you away, the judge was yelling something about outrage au tribunal.... (contempt of court).

The French have just opened a new penal colony on the other side of the world called Devil's Island. If a name means anything, none of this is good news. There was also that funny looking head-cutting device you saw on the way in. Guillo ... something.

world map 1852As you enter your lonely and cold jail cell in a new but still filthy prison near where the Bastille was stormed only a few decades earlier, there it is on your mattress, along with a single, blood-stained sheet and a small bucket, the first issue of the American Law Register!

You handle it carefully before cracking open it's newborn spine. Yes, all beautiful, gorgeous 776 pages of it.

The first law journal ever published in your free and democratic home of America and there it is for your reading pleasure.

And ... with time to kill.

1852-1853

And .. it's recent ... published this year, 1853! Just arrived from America.

In 1853, the world was a different place. Joe Colton's map of the world was sensational and really brought his map-publishing company to the forefront.

American Law RegisterLaw was still as it always has been, the burgeoning religion, if not dog team of the rich. The Mount Sinai Hospital is just starting in New York City and a new state is proclaimed as Britain (or is that England?) retracts its colonial tentacles from Transvaal.

There is war in Burma and Taiping.

OMG! Daniel Webster died which, you later discover, is covered in the Law Register:

"... the news of which we received as these sheets were passing through the press, is a sudden and a heavy blow. In him the nation has lost perhaps the noblest orator and the greatest statesman she has yet produced.... Like some strong ship, emerging from the safe embrace of the river, and the widening bay, the republic has (now) begun its uncertain path upon the vast ocean of the future. What that future is  - what of good or ill lies beyond the swelling horizon - we cannot tell.... Like the pentathlete of the Olympic games, his contests were upon every arena; and in all, he was first.... Mr. Webster has died in the service of his country; if not in its highest office, in that from which the most is required. Still at his post , his failing hand unclasped the helm of State."

But there is peace for all that in the American Law Register, a law journal from that bastion of democracy, Philadelphia, and that would one day be advertised by the University of Pennsylvaia Law School as:

"... originally published in 1852 as the American Law Register, the University of Pennsylvania Law Review is the nation’s oldest and among the nation’s most distinguished and influential."

This is what lays before you, to crack the spine and dive in and lose yourself from your misery in the rich pages of law.

1 Am. L. Reg.

Even the cover smacks of Philadelphia: "Editors Asa Fish and Henry Wharton" and the publisher none other than D. B. Canfield & Co. of New York City.

As this is the first edition, some latitude is given to the publishers to wax eloquent and you've got nothing if not time.

Just what does one say when one puts out America's very first law journal?

You lie down, try to find a comfortable spot on the mattress and peruse those famous, cavalry-rousing words:

"The first number of the American Law Register is given to the profession by its editors, with some solicitude. The difficulties attending the commencement of a journal are great, especially where, as in the present case, inexperience is added to a necessary haste of preparation. The selection of matter in a work of this kind, is, at first, limited. Those contributions, upon which its chief merit must depend, are not to be obtained at once. The right balance, too, amongst the variety of objects to be pursued, and of tastes to be consulted, can only be learnt in time. While some would desire the journal to devote itself merely 'to the practical side of the law, others might wish a higher and more scientific standard adopted. The editors cannot hope to have found the true medium. They will endeavor, however, to compensate in some degree, by industry and zeal, for such defects as error of judgment or want of ability may lead them into. They submit themselves, therefore, to the kind judgment of their brethren, trusting that the LAW REGISTER will not be found entirely without interest or value."

America 1852You can't teach that kind of writing, even in Philadelphia.

There's more and here's where the juicy law stuff really starts flowing:

"An important point, as to the liability of carriers for the character of the articles conveyed by them, has just been decided by one of the courts at Paris. It seems that the game laws of France prohibit not only the sale or hawking of game out of season, but even its transportation, transport) at such time.

"On the 26th of last July, there was deposited at the station at Jouy, a basket, in which was a bag containing live birds, which the person sending asserted to be pigeons. The parcel was placed on a train coming from Chartres, and was conveyed to Paris, where, on inspection by the custom's officer, the alleged pigeons proved to be 39 fine quails. On these facts, the conductor of the train was cited before the tribunal, and the rail road company (del' Oust) also summoned as civilly liable.

"In defence it was urged that the conductor knew nothing of the contents of the basket, which the company had neither the right to open, nor if they had this, to refuse to carry, and that it would be extremely hard to make them liable for what they thus could not prevent, especially, when as in a particular instance, both the name and residence of the party who sent the same, were unknown. But the court, notwithstanding these arguments, imposed a fine on the conductor of fifty francs, and declared the company civilly responsible.

"We do not, at present, remember any decision at the common law, exactly on all fours with this of the French court; but it appears to be a general principle, at least in revenue cases, that a ship will be forfeited for having on board articles prohibited by the laws of the country to which she comes, though they were shipped without the knowledge or consent of her master or owners. A different doctrine, however, has obtained in modern times, with regard to goods contraband of war, unless the vessel also belongs to the owner of the goods, or in cases of fraud."

Pigeons ... contraband ... war.

Several lovely, delicious law days later, you arrive at page 126, some case called Lemmon v New York:

"The decision of Judge (Elijah) Paine setting free the eight slaves found in the port of New York, on their way with th6ir master from Virginia to Texas, must fill the country with political indignation and professional disgust."


Freeing slaves ... political indignation and professional disgust?

Hands cupped under your head, you stare at the ceiling of your jail cell. What will the world and law be like in 160 years hence? Eyelids begin to droop (law journals can be good for that) and the American barrister in Paris vanishes.

2013

In today's world of instant and electronic information, the arrival of a law journal by mail is often an unremarkable if not  dreary event. Many are published and sent out but few are read. They may make the "just in" shelves of the local law library but the law students pass them by, texting something to Facebook or Tweeting their last class.

And yet each one of these law journals, law reviews, contains nugget of general legal interest, of intrigue to any lawyer, representing as it were a stream of law as would a series of photographs set to time.

Were it not for the stream of law journals, there would be less connect between the law and the lawyer of 1852 and 2013, and the stream of law as it has flowed in so many different directions.

The American Law Register is indeed America's oldest law journal and since 1852, from prisons in Paris to Alaska, it has been streaming law and it contents no less rich by the passage of time.

Thank you Messrs. Fish and Wharton, barristers-at-law. Lawyers, judges, law students - we are the richer for it.

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