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FOREWORD

“IT IS THE MOST ORIGINAL BOOK in the English language on comparative law since Sir Henry Maine’s great work sixty years ago. It is the richest canvas, if not the only one of its kind, yet produced.” So wrote Dean John Henry Wigmore of the Northwestern University School of Law in his review of John M. Zane’s The Story of Law when it first appeared in 1927. Wigmore, one of the most distinguished legal scholars of his time, appreciated Zane’s unique contribution to legal history; for here was the first complete outline story of how law came into existence, developed, and changed through the ages, and why it plays such a prominent part in our lives today.

John Zane was not, however, an isolated genius. He was, rather, part of an age that treasured legal history in a way that the present age does not. The Story of Law appeared near the close of a period of enormous creativity. The nineteenth century had witnessed the flowering of two new ways of understanding legal history. The first was associated with a relatively new school of jurisprudence, historical jurisprudence, founded by Carl Friedrich von Savigny, which challenged the premises of natural lawyers and positivists alike. Historical jurisprudes argued that the law was neither the concrete expression of transcendent norms, as the natural lawyers contended, nor the product of sovereign command or toleration, as the positivists asserted. Rather, they claimed, law must be understood as the unique product of particular nations’ backgrounds and cultures. It was the lawyer’s task, according to this school of thought, to look to the past to identify principles consistent with a given nation’s culture which could be used to resolve contemporary problems. The lawgiver who failed to understand his nation’s tradition and relied upon reason or political will alone to promulgate laws was inevitably doomed to failure.

The roots of this new jurisprudence are traceable to such great seventeenth-century English lawyers as Sir Edward Coke, Sir John Selden, and Sir Matthew Hale, who deployed historical arguments both to restrict monarchical powers by appeal to a historically rooted constitution and to explain the paradox of a legal system that changed over the centuries yet remained the same system. But Coke, Selden, and Hale wrote against the backdrop of a unified and transnational European legal culture—called by many contemporary legal historians the ius commune—and in the context of a larger European jurisprudence that had successfully integrated natural law, positivism, and historical reasoning. The late eighteenth and early nineteenth centuries, nevertheless, witnessed the destruction of the ius commune and the severe weakening of an integrated understanding of the law under the assault of the nationalist impulse to exalt the law-making power of the state and the rationalist desire to reform traditional practices and institutions.¹

Historical jurisprudence, as it developed during the course of the nineteenth century, rejected the rationalism of the reformers, substituting for it the history of the nation and the proper understanding of its “spirit” (Volksgeist). Large numbers of historians, moved by the desire to trace the growth of their national legal systems, scoured the past to identify uniquely French or German or Italian or English elements, thereby shredding the wholeness of the old ius commune.

The second approach to the writing of legal history that blossomed in the nineteenth century was an offshoot of a particular kind of belief in the progress of humankind. In the eighteenth and nineteenth centuries, this faith came to acquire a peculiarly scientific cast: It came to be presumed that all of human development must have followed the same trajectory and that the organization and structure of primitive societies might therefore be taken as evidence of the ways in which all persons must at one time have lived. The belief that societies grew in stages which could be labelled as more or less advanced led in turn to an effort to employ all of the skills of the scientist to classify and categorize and thereby discover the basic rules by which those stages developed. This basic concern also moved many of the leading legal historians of the time to look to non-Western societies in an attempt to discern within them the stages of legal development and the rules that governed their emergence, their flourishing, and their inevitable senescence.²

The great historians of the age, naturally, were able to draw on these twin tendencies for insights but were not limited by them. In the English tradition, Sir Frederic Maitland, Sir Frederick Pollock, and Sir William Holdsworth sought to describe the development of English legal institutions, although they were all mindful that English law was not the product of purely insular forces but shared in a much deeper Western legal tradition. Other historians proposed an evolutionary understanding of the whole of legal development. Thus, Sir Henry Sumner Maine argued that all legal development in the progressive societies of the West should be understood as a movement from status to contract—from collectivism, in other words, to individualism—while Sir Paul Vinogradoff set out to describe the development of law as the gradual elaboration and systematization of popular customary practices. Other scholars—whose names and works can be found in the annotated bibliography—wrote general outlines of the history of law, tracing its growth from the first stone tablets of Mesopotamia to the sophisticated efforts of contemporary lawyers to subject human life on a global scale to the rule of law.

The Story of Law was published as this outpouring of scholarship was drawing to a close. In a sense, this work stands as a sort of late summer harvest, collecting and winnowing the best of that which had gone before. Layer by layer, Zane re-creates the gradual growth and elaboration of the law from the first attempts of neolithic man to regulate his living arrangements to recent times. Widely and deeply read, he drew judiciously upon his predecessors. One can detect the influence of Maine, Maitland, Vinogradoff, and others in the pages of this work.

But this work also stands as a monument to a now lost heroic age of lawyering. In the second half of the twentieth century, the kind of panoramic vision Zane’s contemporaries took for granted has been kept alive by only a few historians. In the United States, Harold Berman has boldly defended the integrity of the Western legal tradition, contending that it has had a continuous existence from the eleventh century to the present, although its continued survival is grievously threatened.³ Judge John Noonan, for his part, has examined the elaboration of the belief that justice should be uncorrupted by special favor or partisanship from Mesopotamian beginnings,⁴ while Brian Tierney has identified a Western constitutional order with deep roots in the eleventh and twelfth centuries.⁵ Alan Watson, whose career has bridged both the United States and Great Britain, has written systematically on Roman law and a number of other important questions.⁶ In England, John H. Baker, S. F. C. Milsom, and the late T. F. T. Plucknett have examined comprehensively the growth of English law,⁷ while on the Continent, Manlio Bellomo, Helmut Coing, and Jean Gaudemet have explored the essential unity of European—and by extension Western—legal history.⁸

John Zane has much to offer a new generation of readers. Unlike the legal positivists, he believed passionately in the transcendent importance that legal history has for the practice of law. Only by knowing the history and principles of the law could one become a truly great lawyer. That was because the law was, for Zane, a much deeper phenomenon than simply the particular pronouncements of a court or legislature. Indeed, the sovereign instruments of government were themselves bound to obey the law. The most these bodies could hope to achieve was to discover the law through a deep search of the past and a sympathetic understanding of present needs.

Zane’s Legal Career

John Zane was born on March 26, 1863, in Springfield, Illinois, into a family with deep affinities for law and politics. His father, Charles Schuster Zane, had been active in Republican Party circles beginning in the late 1850s and had replaced Abraham Lincoln in the law firm of Lincoln and Herndon in March 1861, when Lincoln left Illinois to take the oath of office as the newly elected President of the United States. Charles Zane’s wife, Margaret Maxcy Zane, was a niece of William Herndon, the other named partner in the Lincoln and Herndon firm and an important early Lincoln biographer.

The younger John Zane was a precocious student who mastered Latin and law French even before his adolescence. It seems as well that he had developed an abiding interest in the history of law at an early age. Thus the memorial to Zane in the Chicago Bar Record declares:

It is related that when [Zane] was a boy at Springfield he used to delight in reading in the Supreme Court Library the old English Year Books; this extraordinary linguistic proficiency attracted the attention of Justice John Scholfield who, regretting his own inability to read the strange language of those tomes, asked the boy why he read them, and the answer was that he wanted to know the story of the law.⁹

Zane completed his undergraduate education at the University of Michigan in 1884, and, like his father, chose to take up the study of the law. Earlier that same year, the elder Zane had been appointed chief justice of the Federal Territorial Court in Utah, and John chose to relocate to Salt Lake City to be with his family. John received an appointment as a clerk in the territorial court and commenced to read the law with his father. Reading the law with an established practitioner was then a common means of legal education.

John was admitted to the bar in 1888 and spent a total of eleven years, from 1888 to 1899, engaged in the practice of law in Utah. He distinguished himself especially as an appellate advocate, arguing, among other cases, a leading mining case, an early women’s suffrage case, and an important anti-polygamy case.¹⁰

By the late 1890s, John Zane had established himself as one of the most important lawyers in Utah. He took a leading role in what was first the territorial and subsequently became the State Bar Association, and published his first academic article, a careful analysis of the language of the state constitution as finally ratified.¹¹ But already John Zane’s Utah days were drawing to a close. He was preparing to move back to his native Illinois—not to Springfield, however, but to Chicago.

Chicago in 1900 was Carl Sandburg’s “city with broad shoulders,” full of swagger and promise. The Columbian Exposition of 1893 was still fresh in people’s minds, and Chicago had already acquired for itself the nickname “the Windy City”—not for any meteorological phenomena but rather for the outspoken boosterism of its political classes. John Zane had affiliated himself with what became the firm of Shope, Mathis, Zane, and Weber,¹² and, in a Chicago sort of way, he announced his arrival with the publication of a major treatise on banking law, a book the compendious title to which—The Law of Banks and Banking, Including Acceptance, Demand, and Notice of Dishonor Upon Commercial Paper—was quickly abbreviated to Zane on Banks and Banking.¹³

The book evidences both Zane’s enthusiasm for history and his technical mastery of the law of banking. In his prefatory note, he expressed the wish that his book “be of use not only to lawyers, but also to bankers.”¹⁴ The introduction reveals Zane at his most magisterial, deftly tracing the origin of Anglo-American banking law to English theories of bailment, trusteeship, and agency, and proposing to criticize courts that failed to understand the historical roots of the concepts they all too clumsily deployed. Bracton, Thomas More, and Francis Bacon, among others, felicitously adorn these pages. Zane then proceeded to set out the substantive law of banking in 852 densely written pages.

The treatise was unevenly received by reviewers, although this may have been more the product of the author’s difficult personality than of a fair assessment of the book’s strengths and weaknesses.¹⁵ In any event, the book was well received by bench and bar. It appears in the reported arguments of counsel before the United States Supreme Court and was frequently cited as authority for over four decades by both federal and state courts.¹⁶

Zane would spend the remainder of his career in Chicago, engaged for the most part in the practice of law, teaching only briefly at the Northwestern University School of Law and the University of Chicago. The heart of Zane’s legal work was patent, trademark, and commercial law, and, indeed, one can trace the history of industrializing America in some of the patent and trademark cases which Zane litigated.¹⁷ But Zane handled other types of cases as well, including actions under the anti-trust laws, eminent-domain proceedings, and constitutional challenges to the authority of government to regulate industry.¹⁸ Over the course of twenty-four years, beginning in 1912, Zane argued a total of six cases before the United States Supreme Court.¹⁹

But Zane did not neglect scholarship. He maintained the sort of life that has become seemingly impossible in today’s age of specialization: that of advocate scholar. Beginning with an article on mining law that appeared in the Harvard Law Review in 1902, he published important articles in leading journals for the next three decades. He also published works on classical Rome and Roman law and Abraham Lincoln’s constitutional theory, in addition to The Story of Law and his treatise on banking law. With Carl Zollmann, he also prepared in 1923 the ninth edition of Bishop on Criminal Law, a basic legal treatise that had been in print since the 1850s.²⁰

In his later years, Zane threw himself passionately into the Chicago literary scene. He had been a member of the Caxton Club since 1916, and in 1928 he was elected its president.²¹ Zane’s election occurred at a particularly fateful time. The stock market crash of 1929 devastated the membership, and Zane was called upon to keep the club alive. The Caxton Club’s history records that he performed this task with admirable success. He convinced many members to rescind their resignations and devised a variety of expedients to keep the club active despite its desperate financial state, such as luncheon gatherings that featured outstanding public speakers on important issues of the day. Correspondence in the club’s archives indicates the extent of Zane’s efforts to keep the club solvent. When the club published his work on Lincoln’s constitutional thought, Zane felt it necessary to indemnify the club against any risk of financial loss.²²

Zane remained active until the very end of his life. He continued to litigate and was reelected president of the Caxton Club in 1937, at the age of seventy-four. His final paper, “Oratory Is No More,” delivered before the Chicago Literary Club in April 1937, is a stirring reminiscence, drawn from classical sources such as Cicero and Quintilian, and more recent sources such as Edmund Burke, of the qualities of good oratory and a lament that mass democratic movements and new technologies such as the radio have destroyed the orator and replaced him with the demagogue.²³ John Zane died unexpectedly on December 6, 1937, while visiting Pasadena, California.

An Appreciation

To appreciate The Story of Law, it is important to bear in mind that this work is not—and indeed cannot be—a comprehensive history, and that Zane was forced to employ principles of selection in determining what was to be included within his story. To say this is not to detract from the significance of Zane’s accomplishment. The Story of Law remains uniquely valuable as a learned and highly readable account of the shaping of Western law from the Neolithic age to the dawn of the twentieth century.

We are fortunate in having Zane’s own statement on the principles he used in selecting what went into the telling of The Story of Law. In a letter to John Wigmore in January 1928, Zane stated:

I do not claim that it is a history of law in general, but it is an attempt to show the great formative elements that determined why law is what it is among us [emphasis in original]. To compress the matter within reasonable limits, it was necessary to disregard all the systems of law that do not belong in this direct development. I took the original primeval man, followed him through the great formative institutions that make the great heads of law, then took the Aryan with his developments among the Celts and Gauls and the Hindus, then passed to the contributions of the Semites, Babylonian and Jewish, then showed the original Aryan, Greek, then the Roman, and thence by the mediaeval feudal system to the English. Necessarily I left out the Egyptian, and the Hellenistic law after Justinian, where I could have done much with the Basilicata, but this system was too late. I also left out the Spanish, French, and German developments, because I was sticking to the trunk of the genealogical tree and then following the English limb. But what I kept in mind was private law as between man and man and the legal rules and institutions through which one citizen obtains his rights against another citizen. So when I reached the English law I did not pay much attention to the genesis of the political institutions except as they were purely conceived with the production, the modification, and the application of private law. When I reached our legal development I changed to constitutional law, for the reason that we have the unique development by which in a private lawsuit, a machinery is furnished which makes constitutional law binding in private litigation. This I say is the Reign of an Absolute Law. Perhaps I should have explained this for the benefit of the ordinary reader, but I felt sure that he would catch the drift of the book on its general lines.²⁴

Chapter by chapter, Zane unravels the evolution of law in Western civilization. He stresses that the historian must always bear in mind that the development of law is necessarily related to fundamental “social facts.”²⁵ Philosophers especially tend to forget the relationship between law and society, with disastrous consequences.

To a degree unusual but welcome among legal historians, Zane emphasizes the development of commerce as an integral part of the story of the law. The contributions of Babylon, Greece, and Rome to the early history of commercial law are all reviewed here. Commerce is the main source of peace and progress in the world, and lawyers who promote its steady development are performing a public service. The English are especially praised for their integrity in dealing honestly even with their enemies: “[We are reminded] that during our Revolutionary War certain shares of Bank of England stock stood in the name of Washington, who was in arms against the English government, yet all through that war the dividends upon that bank stock were regularly paid to the commander of the army of rebellious Americans. Washington was a rebel in arms against England but the Bank of England was a commercial institution and here as always the honesty instituted by trade is far superior to any other conception of honest conduct.”

It is to be regretted, however, that Zane placed little emphasis on the role religious thought played in shaping Western legal principles and institutions. His story is for the most part a secular one, its heroes consisting of urbane Roman lawyers and largely secularized Englishmen and Americans. As recent scholarship has shown, however, the canon lawyers of the twelfth through fifteenth centuries made an enormous contribution to the history of Western law.²⁶ Indeed, it has been convincingly argued that a distinctively Western law was only born in 1075 in the course of a “Papal Revolution” led by Pope Gregory VII against the domination of the Church by the Emperor Henry IV.²⁷ It was at that time that lawyers in attendance at the papal and imperial courts began to rework older sources into coherent claims of legal right on behalf of their patrons.

Similarly, Zane ignores the contributions of Protestant lawyers, whether in Lutheran Germany or in England in the mid-seventeenth century. But the Lutherans gave to the West a new emphasis on the Ten Commandments as a source of natural-law reasoning as well as new methods for organizing the law, while deeply devout Protestant lawyers such as Sir Matthew Hale (1609–76)—whom Zane dismisses in a few lines because of his participation in witch trials—contributed to the shaping of a new English legal philosophy that stressed continuity with the past, an adversary system of presenting evidence, and new standards of proof drawn from the scientific methods of Robert Boyle and other members of the Royal Society.²⁸

It has now been seventy years since John Zane published his Story of Law. Notwithstanding the passage of time, additional research, and newly discovered documents, his account remains in general a highly accurate picture of the development of the law. Of course, every specialist can think of certain matters important to the development of a particular line of inquiry that were omitted, underemphasized, or perhaps given too much weight. But in the light of his bold and far-reaching commission, Zane executed his assignment admirably.