Concepts and networks of 19th-century American codifiers and their role in the development of the American civil codes
Following the foundation of the United States of America, most of its territories continued to use the legal framework of the former colonial power, the English common law. However, the establishment of the new states and their elites’ desire to emancipate themselves from the British monarchical regime led to extensive debates about codification among 19th-century American legal thinkers. In addition to the national debate on the question, a series of influential civil codes were adopted in seven states (Louisiana, Georgia, California, Dakota Territory, North Dakota, South Dakota, Montana), making the 19th century a golden age for American codification and creating a unique American definition and understanding of codes. In addition to being redactions of the common rather than civil law, these codes also differed from their European counterparts in being used as a secondary source of law.
In most cases, codification endeavours were undertaken due to the efforts of proponents and defenders of the idea of codification. The codes’ draftsmen, most of them eminent members of the legal profession, used their political influence and networks to ensure the creation and adoption of the codes. Sometimes, they found themselves facing strong resistance from opponents who worked tirelessly to prevent codification in their states. In New York, for example, the adoption of a civil code was blocked by those in favour of the continuation of the common law.
The aim of my research project is to assess and analyse the private correspondence, papers and journals of these ‘champions’ of codification and anti-codification, respectively, in order to gain a better understanding of their personal definitions of the terms ‘code’, ‘civil code’ and ‘codification’, as well as of their views on past and present codification processes. Previous research conducted in my doctoral thesis showed that most of the men involved in these codification projects were acquainted with each other, with relations ranging from close family ties to long-running feuds.
In order to fully grasp the history of American codification, it is therefore important to address the codifiers’ thoughts and personal links to examine the transfer of the European notions of civil code and codification to the United States. The study of their private papers, journals and correspondence – between each other, but also with others in their broader networks – will allow me to extract their understanding of the task of drafting a civil code. Above all, it will uncover the influence the men had on each other’s thought. Through personal documents, the development of the definition of ‘civil code’ in the United States can be traced, which can serve to explain the novel direction the codes took when implemented.