------- Forwarded Message Follows -------
Date sent:              Wed, 31 Oct 2001 14:38:00 -0500 (EST)
From:                   Ian Mylchreest <[log in to unmask]>
Subject:                [H-Law] Private Law under late 18th century constitutional regimes
        (Johnson)
To:                     [log in to unmask]
Send reply to:          H-Net and ASLH Legal History Discussion list <[log in to unmask]>

From:    [log in to unmask] (Herb Johnson)

In reply to Professor Forsythe's question:

The normal operations of private law are not suspended either by a
change
of government, nor my a revolution.  At the outbreak of the
American
Revolution a number of residents remained loyal to the crown, and
many
states sequestered or seized their assets.

However, the dower rights of their wives were protected provided the
women
remained in the newly formed states.

Changes in sovereignty normally do not alter private law
relationships.
One example of this is the last minute transfers of Florida lands
before
the final cession in 1819; these were upheld as valid transfers of
property by the Spanish crown.

The Articles of Confederation were ostensibly a weak federalizing
document, but in regard to the old Northwest Territory, and the
enactment
of the 1787 Northwest Ordinance, subsequent Illinois Supreme
Court
decisions held that the Confederation Congress exercised sole
sovereignty
in the territory, and thus could abolish slavery in spite of former
treaty
provisions which appeared to uphold the institution of slavery as it
existed under French rule.  See Jarrot v. Jarrot, 7 Illinois 1.

Obviously the ratification of the Federal Constitution did have an
impact
of limiting, prospectively, the right of the various states to alter their
private law institutions.  But in the absence of the Federal Bill of
Rights being applicable to the states, and the limited appellate
jurisdiction of the U.S. Supreme Court over state courts, this made
only a
limited impact upon state private law.

Most of the issues raised by your question involve matters of
private
international law.  I might also mention that, as to relations
between the
states in private law matters, that colonial lawyers were already
developing a rudimentary conflict of laws jurisprudence during the
1770s,
if not before.

I hope these thoughts will be helpful.

Herb Johnson
University of South Carolina School of Law

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