A Mere Feigned Case: Rethinking the Fletcher v. Peck Conspiracy and Early Republican Legal Culture
![handle is hein.journals/utahlr2000 and id is 259 raw text is: A Mere Feigned Case: Rethinking the
Fletcher v. Peck Conspiracy and Early
Republican Legal Culture
Lindsay G. Robertson*-
Frederic Maitland, the great English legal historian, once wrote that
[t]he only direct utility of legal history... lies in the lesson that each
generation has an enormous power of shaping its own law.1 As I read this,
Maitland makes two points. The first is that the value of history to law lies
in its capacity to empower by illuminating the human element in the process
by which law is made. The second is that each generation does in fact shape
its own law; i.e., that the law of a given time is the product of
contemporaneous human agents. The law produced by a given
generation-Maitland himself was interested in the Middle Ages-can best
be interpreted by reference to the circumstances driving its creation. Modem
scholars, lawyers and jurists interested in understanding the meaning of an
old opinion can best do so by understanding the history of its rendering. One
might call this history illuminating law. I would suggest that it is the
dominant rationale underlying most legal history being written by lawyers.
There is another rationale at large in the academy, and, not surprisingly, it
posits the reverse. Legal history tells us much about culture. Law is, after all,
at its base simply the means by which we regulate interaction between
people. By looking to the history of individual instances of dispute resolution,
we can learn much about the values of a given age or set of individuals. This
vision drives many non-legally trained historians who make use of legal
materials. One might call this approach law illuminating history.
As a professional hybrid, I find myself not simply alternating between
the two, but through some perverse synergy adding additional layers. The
following is an example, drawn from a larger study of one of the Supreme
Court's foundational Indian law cases, Johnson v. M'Intosh,2 decided in
1823. My hope here is to draw your attention to what I believe to be one of
the great Supreme Court case studies, C. Peter Magrath's Yazoo,3 a history
illuminating law book on Fletcher v. Peck,4 and to suggest that there is
© 2000, Lindsay G. Robertson. All rights reserved.
Associate Professor of Law & History, University of Oklahoma College of Law.
'See NORMAN F. CANTOR, INVENTING THE MIDDLE AGES 51 (1991) (quoting Frederic
Maitland (1896)).
221 U.S. (8 Wheat.) 240 (1823).
3C. PETER MAGRATH, YAzOo: LAw & PoLrIcs IN THE NEW REPUBUC (1966).
410 U.S. (6 Cranch) 48 (1810).
249](ViewImageLocal?handle=hein.journals/utahlr2000&div=17&collection=&method=preview&ext=.png&size=3)
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A Mere Feigned Case: Rethinking the Fletcher v. Peck Conspiracy and Early Republican Legal Culture
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