Contracts and the Birth of a Free Society

Part 1

If private property is the first principle and cornerstone of a free society, then the second principle of a free, just, and prosperous society and the moral cement that binds it together is the freedom, enforcement, and sanctity of contracts. The right of individuals to enter into binding agreements with one another is built on the right to own property. As with the recognition and protection of private property, the development, use, and protection of contracts as an unalienable right is a reliable barometer of how much freedom there is in any given society. America’s revolutionary Patriots and Founding Fathers viewed private property and contracts as formal legal conventions, but they also viewed them as moral concepts grounded in human nature and natural right and antecedent to government.

Broadly speaking, this two-part essay examines what contracts are, why they exist, how and why they are formed, why they are necessary for human flourishing, and, most importantly, the role they play in a free society. More specifically, I will examine these issues in an American context, particularly in the light of the American Founding and the first half of the nineteenth century.

My working thesis is that America’s Founding Fathers and their immediate progeny consciously designed and built a free society grounded in private property and the contractual relations between free individuals, which in turn led to the development of the third core principle of a free society, namely, that commerce should be as free as possible. (I shall examine the role of commerce in a free society in the weeks to come.) The rise in America of a free, impersonal, market economy hinged on the development of an entirely new understanding of what contracts are, where they come from, and what they’re for. Contracts simultaneously liberated men to produce and trade in ways hitherto unimagined, and they also provided the legal cement binding America’s free society together without the force of Church or State. Post-founding America became the world’s first society based from top to bottom on free contractual relations.

Defining What Contracts Are

Let us begin by defining our terms.

Samuel Johnson’s Dictionary of the English Language (1775) defined the noun “contract” as “An act whereby two parties are brought together; a bargain; a compact,” and as “A writing in which the terms of a bargain are included.” He also defined the verb “to contract” as “To bargain: as, to contract for” something. Likewise, Noah Webster defined the noun “contract” in his American Dictionary of the English Language (1828) as “An agreement or covenant between two or more persons, in which each party binds himself to do or forbear some act, and each acquires a right to what the other promises; a mutual promise upon lawful consideration or promise upon lawful consideration or cause, which binds the parties to a performance” and as “The writing which contains the agreement of parties with the terms and conditions, and which serves as a proof of the obligation.” Webster defined the verb “contract” (intransitive) as “To bargain; to make a mutual agreement, as between two or more persons.” A contract represents, in other words, a promise to complete or fulfill some kind exchange at some future time.

The law of contracts is a complex legal institution, and even the simplest contracts are defined by several assumptions and characteristics. Before we examine, how the Founding generation understood and transformed the law of contracts, let us begin by putting some flesh on the definitions of Johnson and Webster. I can identify no fewer than seven key attributes of a contract.

First, contracts presuppose not only the existence of private property, but, more fundamentally, contracts assume that men have a moral right to pursue private property and then keep, use, or dispose of it at will, which in turns presupposes that men have an absolute right to liberty and to their lives. Contracts involve the trading of privately-owned goods and services by two or more parties. (The trading of a service implies self-ownership.) Not all contracts involve, of course, the exchange of economic goods and services, but most do so either directly or indirectly. Contracts are used, for instance, in the formation of marriages, partnerships, churches, schools, and the like. The parties to a marriage contract, for instance, promise certain positive actions to each other (e.g., “to love and to cherish, till death us do part”), which also means to refrain from certain actions (e.g., adultery). At the most fundamental level, all contracts assume self-ownership.

Second, contracts must be voluntary, which assumes that men and have free will, and that they are equal in their right to know and pursue their own self-interest. A contract is an agreement between two or more free and equal individuals, each of whom is assumed to have the capacity to execute what they have agreed to exchange. Contracts, wrote Sir Henry Sumner Maine in his now long-forgotten classic Ancient Law: Its Connection With the Early History of Society and Its Relation to Modern Ideas (1861), treated each individual as free and equal and who “possessed the faculty of forming a judgment in [his] own interests.”

Third, a contract involves a promise to do or not do something in the future, and attached to the promise is a moral obligation to complete one’s side of the transaction. Built into the heart of a contract is a promise, and a promise requires the principle of fidelity to one’s word. Samuel Johnson defined a promise as a “Declaration of some benefit to be conferred,” and Noah Webster defined a promise as “a declaration, written or verbal, made by one person to another, which binds the person who makes it, either in honor, conscience or law, to do or forbear a certain act specified; a declaration which gives to the person to whom it is made, a right to expect or to claim the performance or forbearance of the act.” In terms of a contract, a promise confers on the promisor a moral and legal obligation to do something in the future, and it confers on the promisee an expectation to receive that which was promised.

Fourth, a contract captures and specifies the precise terms of an agreement—i.e., a meeting of the minds—between two or more people to exchange certain goods and/or services. In other words, contracts are a moral-legal mechanism facilitating the trading of privately owned goods and services. The value of the goods or services being exchanged are affixed solely by the parties to the contract. A contract is the objectification of an agreement, wherein two or more parties promise to do or not do something in the future.

Fifth, contracts represent transactions between two or more parties for mutual gain. Each party to a contract expects to gain a greater value in exchange for a lesser value. This assumes that each party to the contract is acting in and for their self-interest. In the words of Supreme Court Justice Mahlon Pitney, where there is a free society grounded in private property and freedom of contract, “the contract is made to the very end that each may gain something that he needs or desires more urgently than that which he proposes to give in exchange.” Contracts forge win-win relationships.

Sixth, contracts also involve justice, because each party to a contract claims a moral and legal right to that which has been promised to him, and each assumes an obligation to deliver what one has promised. A “right” in this sense means ownership or exclusivity. Justice is served when each party to the contract does what one promised to do or not do and each party receives what they were promised. To renege on a contract is an injustice that violates the right and the obligation. To enter a contract with the intention of not fulfilling one’s promise is to commit fraud and/or theft.  

Finally, an important characteristic of a contract is that it is written. Trading with others is often fraught with disagreements about the terms and conditions of the exchange. This is largely because men are neither omniscient nor infallible. Men cannot predict the future and life’s changing circumstances, nor can they have a perfect memory of the past. This is especially true when it comes to verbal agreements and promises between individuals. More specifically, men often forget, misunderstand, or misinterpret the exact terms of a past verbal agreement often resulting in broken agreements, which typically hurts one of the parties. Men also sometimes change their minds about the benefit or value or what they expect to give up or gain. Different interpretations of a verbal agreement, selective hearing, and certainly willfully broken agreements almost always lead to disagreements, which in turn sometimes become physical conflicts. Sometimes promises are entered into for the purpose of committing fraud, which is a form of stealing.

To overcome the uncertainty of spoken or informal agreements and promises, men invented written agreements in the form of contracts. Written contracts are legally binding agreements or promises to do certain things and which are mediated or adjudicated by a neutral third party (i.e., courts). A written contract details as clearly and precisely as possible the goods or services being exchanged, and it sets the price, terms, and conditions by which the exchange takes place. This is especially true in a free society that protects private property, and which allows for a continually advancing division of labor, where men and women specialize in producing a variety of goods and services leading to an overall increase in the amount, quality, and diversity of life’s wants. In other words, the purpose of a written contract is to capture as closely as possible the true meaning and intent of an agreement between two or more parties. A written contract then becomes the objective reality to which the parties may refer to resolve any dispute over its terms. Anything said before or after the contract by the parties to a contract is not enforceable by law.

Let us turn now to an examination of how America’s Founding Fathers and their progeny understood the nature and meaning of contracts and their role in a free society. More specifically, my task here is to explicate why the Founding generation initiated and developed a new understanding of contracts in post-revolutionary America.

Contracts Old and New

Prior to the American Revolution, much of the traditional colonial economy existed within a customary framework of face-to-face, hierarchical, kin relationships and the barriers associated with what Sir Henry Sumner Maine famously called a “status” society. In this post-feudal world, an individual’s social status was fixed and largely determined at birth, and, as a result, a man’s legal rights and duties were determined for the remainder of his life. Premodern contracts typically represented personal agreements between unequal members of different of social orders (e.g., masters and servants) who followed settled traditions of association and trade. Obligations were born of ancestral relationships. Such “contracts,” or, better yet, arrangements were often not enforced by government. What eventually came to be known as the “law of contract” barely existed before the eighteenth century.

In colonial America, the law of contracts was connected to much older notions of “equity,” which incorporated concepts such as fair-value, just-price theory, and the common good into the valuation of exchanged or promised goods or services. In other words, all goods and services were thought to have some inherent value, and if the terms of a contract did not reflect the intrinsic worth of the promised or exchanged goods, then the courts typically viewed the contract as either unjust or somehow the result of force or fraud.

The slow withering away of the status society during the eighteenth century and the rise of the law of contract made the full development of a market economy possible. In the post-revolutionary world, America’s courts began to alter the law of contracts to better reflect the Enlightenment view of human nature that recognized individuals as rational, volitional, independent, and self-governing beings. Casting aside the traditional “equity” or what I call the “intrinsic” theory of contracts that recognized extant customary, hierarchical relationships between superiors and inferiors in face-to-face communities and the intrinsic value of goods and services, the new so-called “will” or what I prefer to call the “volitional” or “objective” theory of contracts recognized promises of action (often between strangers) based on “the consent of the parties alone,” and that fixed “the just price of any thing, without reference to the nature of things themselves, or to their intrinsic value.”

The clearest eighteenth-century statement of what I am calling the “volitional” or “objective” theory contracts can be found in John Powell’s Essay upon the Laws of Contracts and Agreements published in 1790. The old forms of contracts acknowledged and clarified various backward-looking social relations between different and unequal social orders, and the new form of contracts fixed in writing forward-looking promises, agreements, and exchanges between men viewed as equals before the law. As Powell put it:

[I]t is absolutely necessary for the advantage of the public at large, that the rights of the subject should, when agitated in a court of law, depend upon certain and fixed principles of law, and not upon rules and constructions of equity, which when applied there, must be arbitrary and uncertain, depending in the extent of their application, upon the will and caprice of the judge.

Powell here sums up in a sentence the difference between an objective and an intrinsic view of contracts. Powell is looking to establish contracts upon “certain and fixed principles of law,” which means based upon objective principles rather than upon the “arbitrary and uncertain” “rules and constructions of equity,” which are based upon the subjective “will and caprice” of judges to determine the intrinsic value of a disputed good or service. The practical meaning of the objective view of contracts requires of men that they must in all good conscience live up to their promises even if, in the end, they have made a bad bargain for themselves or find it difficult to execute.

We can see how eighteenth-century Americans began the transition from the intrinsic to objective view of contracts in a short hypothetical case that John Adams posed to himself in 1759, when he was 24-years old.

It is a natural, immutable Law that the Buyer ought not to take Advantage of the sellers Necessity, to purchase at too low a Price. Suppose Money was very scarce, and a Man was under a Necessity of procuring a £100 within 2 Hours to satisfy an Execution, or else go to Goal. He has a Quantity of Goods worth £500 that he would sell. He finds a Buyer who would give him £100 for them all, and no more. The poor Man is constrained to sell £500s worth for £100. Here the seller is wronged, tho he sell [them?] voluntarily in one sense. Yet, the Injustice, that may be done by some Mens availing them selves of their Neighbours Necessities, is not so Great as the Inconvenience to Trade would be if all Contracts were to be void which were made upon insufficient Considerations. But Q. What Damage to Trade, what Inconvenience, if all Contracts made upon insufficient Considerations were void.

The young lawyer from Braintree was still viewing contracts in the traditional sense, but he was also on the verge of pointing toward a new way of thinking about contracts. At the very least, he sees the utilitarian necessity of such an “unjust” trade that nonetheless serves a greater interest. By the nineteenth century, Americans would view Adams’s hypothetical as representing a perfectly just trade. The objective value of the goods being traded was £100 by the terms of the agreement, which the seller viewed as a preferable value to time spent in jail.

The American law of contracts underwent a serious transformation during the years of the American Revolution and certainly in the decades after the Founding of the United States. This transition represented a movement away from a status- and custom-based society that recognized the special rights, privileges, and obligations of different social orders to a contract-based society that recognized self-interested individuals operating under general, abstract rules applicable to all equally. Written promises and exchanges were no longer judged by their intrinsic value and just price as determined by third parties (e.g., judges or magistrates), but were now to be determined solely by the value given to them by the contracting parties. The role of the courts was now to determine if the parties to the contract did what the promised to do.

Henry Sumner Maine described this transition in the English-speaking world as the movement “from Status to Contract.” In the Americans’ newly formed contractual society individuals (as opposed to groups or orders) were assumed to have inalienable rights that bound them together solely by consent and voluntary association. The new theory of contract law that developed in the post-Founding world was concerned only with the factual meeting of minds and the convergence of intentions between two or more people. This new form of contract served as a partial proxy for trust or the lack thereof.

Increasingly, commercial transactions in the emerging impersonal market of late eighteenth-century America were coordinated by written contracts, which in turn served as a mechanism by which self-interested individuals could produce mutually beneficial trades and relationships with others. The development of contract law in post-Revolutionary America provided this energetic, bustling new society with a rational legal structure in which hundreds of thousands of independent individuals could have reasonable expectations about the actions of others and thus make rational decisions about the future. As a result, according to John Witherspoon, President of Princeton College, “Contracts are absolutely necessary in social life.” Contractually bound exchanges had the benefit of promoting a high degree of predictability and certainty in fulfilling agreements between strangers, in reducing exchange costs, in preserving credit, encouraging commerce, and in promoting economic efficiency.

To attain these ends, it was necessary that individuals should be free to enter contracts, that such contracts be honored and enforced by adjudicatory courts, and that they be not violated by legislative interference. Noah Webster thought contracts were “sacred things” that should not be violated, particularly by government. Contracts bring self-interested individuals together by choice and without coercion, and they promote post facto trust, which is the non-coercive, hidden social glue that binds society together. As such, contracts are moral in that they are agreements based on rational, self-interested judgment, free will, choice, equality, and cooperation. The newly emerging American notion of a contract was ably summed up in 1794 by a pseudonymous South Carolina writer, “Americanus,” who claimed that the Americans’ understanding of what a contract is excludes “the idea of a right residing in one party to alter or rescind it—mutual obligation forms its very essence.” American-style contracts were morally and legally binding agreements “between free and equal parties.” And from this new view of contracts a different kind of society emerged, one that unleashed the productive energies of millions of people all of whom were pursuing their self-interest while at the same time coordinating their activities with others in socially beneficial ways.

A New Understanding of Contracts

The most widely used eighteenth-century definition of a contract was employed by William Blackstone in his Commentaries, which defined a contract as “an agreement upon sufficient consideration, to do or not to do a particular thing.” By the end of the eighteenth and certainly by the first few decades of the nineteenth century, as the natural-rights philosophy became fully ingrained in post-revolutionary American culture and as the Americans’ market society became more complex, a more robust view of the law of contracts began to develop.

A contract is, as we have seen, a formal, written agreement between two or more parties that specifies the terms of a future exchange in goods and services. The purpose of contracts is to remove as much ambiguity as possible from voluntary agreements that involve some kind of trade between parties. Contracts must be dependable not simply as a matter of justice between two or more people, but also to ensure the orderly and efficient workings of a vast network of voluntary relationships defined and coordinated by contracts.

The law of contracts arose in the second half of the eighteenth century to overcome as much as possible the vices inherent verbal agreements that are susceptible to the imperfections of human language, fading memories, and different interpretations of an agreement. A written contract therefore casts in stone the terms of an agreement. That is not to say, however, that contracts are immune to misunderstandings based on imprecise written language or competing interpretations, but they certainly go a long way in improving the inherent problems associated with verbal agreements.

One serious problem even with written contracts is that no written agreement can take into account and specify in advance the myriad of contingencies that typically arise in a complex world of human action and interaction. The inevitable disputes that sometimes arise over the interpretation and performance of contracts creates, therefore, the need for some mechanism by which to mediate disputes. Contracts are therefore typically litigated and enforced for non-performance by a neutral third party, i.e., the judicial system. (Even America’s La Cosa Nostra developed an informal court system to adjudicate contract disputes between members. See Henry A. Thompson, “The Industrial Organization of the Mafia,” Journal of Law & Economics [forthcoming]). At first blush, contracts would seem to be an artificial or conventional contrivance, and to a certain extent they are, but beneath, behind, or imbedded in a contract is a whole universe of pre-political moral assumptions, which is why contracts should be seen first and foremost from a moral perspective.

Modern contract theory—particularly as it was developed in post-Founding America—begins from the perspective that individuals have reason and free will—that they have the capacity and the ability to understand and carry out their agreements. This new understanding of contracts assumes that individuals can determine rationally what is in their own self-interest (a contract is an agreement between two parties that fulfills the self-interest of each), and that they have the volition to enter into agreements involving a mutual exchange with another party. A contract is, in other words, an expression of individual autonomy and freedom, and it is a corollary or extension of the principle of individual rights, particularly the rights to liberty and property.

With the rise of this new understanding of contracts, legal relations in America’s new social order would now be based on intentionality and voluntarism. John Witherspoon, President of the College of New Jersey (i.e., Princeton), claimed that one of the “essential conditions of a lawful contract” is that it be “free and mutual.” This new way of viewing contracts assumed that cooperating individuals operating in a market economy, not judges acting for the “common good,” would determine the value of various goods and services. Hence arose an emphasis in American contract law of the principle caveat emptor, which represents the triumph of express over implied contracts, and the need for a meeting of minds as expressed clearly and objectively in a written contract.

Government and the Sanctity of Contracts

The new liberal governments created by America’s revolutionary Founders had as their primary purpose the protection of individual rights, which meant specifically the protection of property rights and the upholding of contracts. Thus, the proper role of government in a free society was not to impinge on contracts but to enforce them as they were written and when they were violated. It was not the role of the courts and certainly not the role of legislatures, for instance, to concern themselves with the inherent justice or fairness of an exchange (e.g., the intrinsic value or price of a good or service as determined by the court). The role of the courts was simply to clarify and enforce the terms of what was written in the contract. Nothing more and nothing less.

Writing in 1786, Noah Webster, the dictionary man, made clear the role of government in enforcing contracts in a free society:

[R]emember that past contracts are sacred things; that Legislatures have no right to interfere with them; they have no right to say, a debt shall be paid at a discount, or in any manner which the parties never intended. It is the business of justice to fulfil the intention of parties in contracts, not to defeat them.

From the Founding to the Civil War, the purpose of American contract law was to increase men’s liberty and their ability to work cooperatively with others. Social and economic relations in this newly emerging society would now be formed by rational assessment, individual choice, and voluntary agreement. The role of the American legal system was to assist and protect individuals and various associations in their private planning and execution. And out of freedom, self-interest, property, contracts, and commerce would come new forms of order, harmony, cohesion, and social stability. The discovery of this knowledge was one branch of what had come to be called the new science of politics, which was an advance and improvement over the ancient or feudal understanding of society and politics.

The Founders’ new science of politics reached its highest expression in the United States Constitution and the Bill of Rights. In addition to its well-known principles, structures, and mechanisms such as individual rights (including property), representation, separation of powers, legislative checks and balances, federalism, an independent judiciary, and the idea of an extended republic, the Constitution’s new science of politics and society also recognized and institutionalized certain socio-economic principles such as the sanctity of contracts. Private contracts between individuals had long been upheld by colonial common law courts, but increasingly the issue became whether governments (particularly state legislatures) had the moral authority, legal right, and political power to violate either private contracts or state contracts.

What spurred the Founders to add the contract clause to the Constitution?

The immediate historical context was born of the events in America during and just after the end of the War of Independence. As I discussed in “The Birth of the Laissez-Faire Constitution,” many state legislatures in the years immediately after the end of the War of Independence passed various forms of debtor relief laws that violated property rights and the sanctity of contract. By 1787, America’s leading philosopher-statesmen became alarmed by those state laws that were violating the fundamental rights of a free people.

In response, the Northwest Ordinance of July 1787, passed by the Continental Congress meeting simultaneously with the Constitutional Convention in Philadelphia, stated unequivocally the importance of contracts for America’s newly emerging society: “And, in the just preservation of rights and property, it is understood and declared, that no law ought ever to be made or have force in the said territory, that shall, in any manner whatever, interfere with or affect private contracts, or engagements, bona fide, and without fraud previously formed.” A month later, the delegates to the Constitutional Convention went even further than the Confederation Congress and approved what would become Article I, section 10 of the Constitution, which stated in part: “No state shall . . . pass any . . . Law impairing the Obligation of Contracts [italics added].”

Notice the difference between the contract clauses of the Northwest Ordinance and the Constitution. Whereas the Northwest Ordinance forbids government from violating private contracts, the Constitution goes further and forbids state legislatures from impairing the obligation of any contract, which necessarily includes those contracts to which a state government had been a party. Had the delegates to the Constitution Convention wanted the contract clause to be limited simply to private contracts between individuals, they would have presumably said so, but they did not. Instead, the plain words of the contract clause are clear: state governments shall not pass—to repeat—any “Law impairing the Obligation of Contracts.” Article I, section 10 represents a serious limitation on the power of state governments to violate property and contract rights. As we shall see, this broadening of the role that the national government would play in resolving disputes over contracts would have serious ramifications in the decades ahead.

The inclusion of the expanded contract clause in the Constitution served a twofold purpose: first, to foster a certain kind of society, namely, a free, just, peaceful, and prosperous society grounded in the principles of natural justice; and second, to limit the coercive and unjust power of government. Writing as Publius in Federalist No. 44, James Madison defended the contract clause of Article 1, section 10, by emphasizing that its highest purpose was to defend the principles of natural justice. Laws that abridged the freedom of contract are “contrary,” he wrote “to the first principles of the social compact, and to every principle of sound legislation.” Madison regarded the Constitution’s protection of the sanctity of contracts as an important “constitutional bulwark in favor of personal security and private rights.” And writing as Publius’s alter ego in Federalist No. 7, Alexander Hamilton denounced the infringement of contracts by state legislatures as “atrocious breaches of moral obligation and social justice.” At the Virginia ratifying convention in 1788, Governor Edmund Randolph likewise supported the Constitution’s prohibition against state laws that violate contracts “because it must be promotive of virtue and justice, and preventative of injustice and fraud.”

The meaning and importance of the Constitution’s contract clause can be seen in the short-term problems it attempted to overcome and the long-term vision of society it attempted to institutionalize. The problem with those state laws impairing the obligation of contracts is that they fomented injustice, immorality, mistrust, and sometimes even hostilities between individuals within society. Returning to the 44^th essay of The Federalist, we see James Madison explaining how and why legislation violating the obligation of contracts was detrimental to individual morality and to social trust.

The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation, that sudden changes and legislative interferences in cases affecting personal rights, become jobs in the hands of enterprizing and influential speculators; and snares to the more industrious and less informed part of the community. They have seen, too, that legislative interference, is but the first link of a long chain of repetitions; every subsequent interference being naturally produced by the effects of the preceding. They very rightly infer, therefore, that some thorough reform is wanting which will banish speculations on public measures, inspire a general prudence and industry, and give a regular course to the business of society.

Madison’s explanation of how and why the Founding Fathers included protection for the obligation of contracts in the Constitution is a clear indication of the kind of society they were trying to create, namely, a free, just, virtuous, and prosperous society. That is, a society unlike anything ever seen before in human history. And in Federalist No. 7, Alexander Hamilton noted that laws violating the obligation of contracts even had a negative effect on relations between the states: “Laws in violation of private contracts, as they amount to aggression on the rights of those states, whose citizens are injured by them, may be considered as another probable source of hostility.” America’s Founding Fathers regarded the sanctity and defense of contracts as a core function of any legitimate government, which meant most of all that government should not have the power to intercede between free men and women forming contracts to serve their self-interest.

The broader purpose of the Constitution’s contract clause was therefore threefold: first, to safeguard the moral obligations and stability of formal agreements (including contracts forged by governments) from legislative impairment; second, to encourage certain virtues, such as rationality, honesty, independence, integrity, and productiveness; and third, to facilitate commercial transactions within or between states. America’s Founding Fathers were particularly concerned to prevent state governments from violating fundamental moral rights through ex post facto laws, which would have the effect of inhibiting justice and commerce. There can be no doubt that the Founding generation was committed to protecting and sanctifying the right to form and uphold contracts. The only weakness of the Constitution on this point is that it contained no clause preventing Congress from violating contracts!

In the years immediately after the framing of the U.S. Constitution, many states included in their revised or new constitutions clauses that mirrored the federal prototype. Old states such as Pennsylvania and South Carolina added contract clauses to their new constitutions in 1790. And new states such as Kentucky in 1792, Tennessee in 1796, Mississippi in 1817, and Illinois in 1818, included contract clauses in their newly minted constitutions that protected contracts from state interference.

The transition from an equity or an intrinsic to a volitional or objective view of contracts is an important but largely neglected story in American history. As we shall see in Part 2 of this essay, the freedom of contract principle was largely respected by courts in the United States up until the twentieth century. The result was an explosion of human creativity and productive power.

To be continued . . .

**A reminder to readers: please know that I do not use footnotes or citations in my Substack essays. I do, however, attempt to identify the author of all quotations. All of the quotations and general references that I use are fully documented in my personal drafts, which will be made public on demand or when I publish these essays in book form.