The Changing Landscape of 19th Century Courts

Abstract

The Changing Landscape of 19th Century Courts Nancy S. Marder (bio) Amalia D. Kessler. Inventing American Exceptionalism: The Origins of American Adversarial Legal Culture, 1800–1877. New Haven: Yale University Press, 2017. 449 pp. Illustrations, appendix, notes, bibliography, and index. $35.00. Amalia Kessler's task in Inventing American Exceptionalism, which she performs exceedingly well, is to challenge the idea that adversarialism was always a feature of American courts. She does this by tracing the development of our court system between 1800–1877 and showing that there were different models of courts and procedures throughout this period. She describes the rise and fall of courts that even many proceduralists are unlikely to have extensive knowledge of, including equity courts, conciliation courts, and the Freedmen's Bureau courts. In uncovering this fascinating history, Kessler explains the role that lawyers played in helping courts of law (also known as common-law courts) gain in popularity, as well as lawyers' contribution to the demise of equity courts. Not only does Kessler show that courts were more varied than students of the American court system might expect, but also that lay participants played a role in each of these types of courts. In our own day, professional judges preside over courtroom proceedings; however, in the period that Kessler examines, lay participants also performed judicial functions in equity courts, conciliation courts, and Freedmen's Bureau courts. Kessler's study of these various courts reveals that the demarcation between professional judge and lay participant, which is so pronounced in our own time, was far less clear in various types of courts in the nineteenth century. Kessler begins her exploration with equity courts, which she describes as "quasi-inquisitorial" rather than adversarial in nature (p. 5). These courts, also known as chancery courts, were headed by a chancellor and marked by proceedings that were reduced to writing and conducted in secret and were adversarial only to the extent that the parties initiated them. Witnesses answered questions, which were written down by an examiner and the testimony was not revealed until there was a decision. Witnesses were examined only once (on the theory that otherwise they might be tempted to alter their [End Page 433] testimony). The documentary evidence was submitted to the chancellor, who was supposed to decide the case based on his "powerful moral intuition" or "refined moral sensibility" and to "pursue the outcome that was procedurally just" (p. 38, 53). The equity judge was viewed, at least according to two main proponents of equity courts, Chancellor of New York Court of Chancery James Kent and U.S. Supreme Court Justice Joseph Story, as "a kind of Romantic hero" (p. 43). Initially, lawyers had little role to play in these courts, which served primarily the elite, but lawyers transformed their role over time. Kessler focuses on the way in which lawyers incrementally created a role for themselves in chancery court, and in doing so, helped to transform chancery court so that its proceedings became oral and adversarial rather than written and quasi-inquisitorial. She uses the New York Chancery as her focal point. Equity courts were under pressure from a growing population, an increase in commercial activity, and greater democratization. Meanwhile, chancery staff remained minimal: there were examiners, who were full-time court officials and wrote down witnesses' testimony; masters, who helped resolve disputed facts; commissioners, who were lay people whose task was to examine witnesses and who were hired on an ad hoc basis and were paid by the parties to perform their task, and the chancellor, who decided the case on the documentary evidence prepared by examiners, commissioners, and masters and who could ensure specific relief. Instead of increasing the chancery staff to grapple with changes in society, chancery court began to embrace the oral and adversarial procedures lawyers urged. As masters moved from written interrogatories to oral testimony because it was quicker (a move that was eventually upheld by Chancellor Kent), it opened the door to lawyers performing this function. Over time, lawyers were able to assume responsibility for questioning witnesses orally and for shaping the questioning to the benefit of their client. Procedural power shifted from masters and examiners to lawyers, and...