I want to share with you my thoughts about why legal history is important to practical-minded lawyers, men, and women interested in the way we use law. We do not have time tonight to start with the Magna Carta and work forward to the 20th century. Therefore, I will confine myself to two examples. One example is from the grand drama aspect of the law, the more sexy kind of issue that captures public attention. The other example is much more obscure and mundane-but I believe much more important. Let me be open about my premise from the start. Law is not the end. It is a means. Lawyers do not have their hands on the levers that make the world revolve.

My first example is the federal grand jury about which we hear so much as Independent Prosecutor Ken Starr parades witness after witness to popping flashbulbs and humming video cameras.

The grand jury is an ancient English device (independent prosecutor is not) from at least the 12th century (1166 Assize of Clarendon for Henry II) created by the monarch to aid in his investigation and prosecution. Its purpose was to help wrest power (administration of justice) from the Church and the feudal barons.

It was an accusatory body at a time when there was not presumption of innocence but trial by ordeal (water-hot or cold-hot iron-morsel). The petit jury (gfand up to 23, petit up to 12) became a trial jury-to determine guilt or innocence.

True, in 1681, the grand jury refused to indict the Earl of Shaftesbury and Stephen College for treason for their Protestant opposition to Catholic Charles II. However, Charles found a different grand jury in a different town who indicted them and they were returned from exile and executed.

In the English Colonies, grand juries inspected the public roads, and reported on public officials and public expenditure. In the most celebrated case of John Zenger, the grand jury refused to indict him for criminal libel for criticizing the colonial New York governor.

Boston grand juries refused to indict those who rioted against the Stamp Act and did indict the British soldiers quartered in the town.

Put another way-the grand juries reflected the popular sentiments of the time. Sometimes doing the demands of those in power; sometimes opposing the hand of those in power.

One of the very peculiar things about American law: We fought an armed revolution to overthrow the British, but then went on to adopt its laws and legal system.

Embedded in the Fifth Amendment to the Constitution is: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury."

The Sedition Act of 1789 made it a crime to publish scandalous or malicious writings about the government, president, Congress, etc. The federalist judges (Hamilton, Adams) used the grand jury to indict the Republican spokesmen and newspaper publishers. When the Republicans gained office, Jefferson tried to get the grand jury to indict his political enemy, Aaron Burr. Southern grand juries regularly enforced the Fugitive Slave Law, and after the Civil War, during reconstruction, subdued the radical Republicans, and refused to indict the members of the KKK.

The point is that legal institutions are staffed by human beings, and both are responsive to the shifting perceptions and values of a point in time. We ought not to be guided by some romantic nostalgia of earlier times that probably never existed the way we want to remember them.

Let me turn to my other example that is much more obscure and mundane. Wisconsin, Minnesota, Michigan and much of northern Illinois, Indiana, and Iowa are beautiful rolling lands dotted with lakes. Once they were heavily forested, too. They were thick with native white pines and hardwood oaks, maples, and other trees. They are not so any more. The trees and forests are second growth. Many are scrubs and soft woods usable best for pulp to make paper. We know what happened-the millions and millions of native hardwood forests were consumed in approximately 50 years from approximately 1875. Moreover, our best estimate is that 2/3 of the cut timber was wasted. The question we are interested in is why it happened.

Our typical response is to say that greedy land and lumber barons-developers-looted and pillaged the land by capturing government and creating laws to sanction their avarice. Passing such moral judgments upon our ancestors warms the ego. There are, of course, enough anecdotes and examples to fill our historical image with dour, black suited, mustachioed men with their hands hidden in their top coats, so we imagine they are grasping something hidden.

The historical record is more complex. It is filled with trivial, undramatic, and uninteresting events that-cumulatively-help explain why people of immediate vision destroyed a natural resource that could have benefited our population for centuries. We find that people in this area at this time in history:

• Relied completely on the market processes, which render everything to a money calculus; and the most immediate needs must be paid, mortgages must be discharged, and current bills must be met. These are legal rules that define what takes place in the woods operations.
• Responded to the most obvious and immediate needs, e.g.; building lumber, railroad ties, telegraph poles, fence posts, fuel for homes and riverboats-without any comprehensive market that might have differentiated the range of quality and types in forest products. They sold to any market that would meet the out-of-pocket costs, selling prime timber when inferior product would have served as well.
• Had to borrow money at high-risk, short term rates rather than longer term capital financing.
• Had clear cutting means cutting the point of maximum economic return under pressure to turn lumber into cash.
• Had no concern for the loss by fire that destroyed most new growth and soil conditions favorable to new growth. Slash-the toppings and limbs from felled trees-was left strewn about instead of being carted off or burned under supervision.
• Had an underlying bias in favor of active exploitation of land, e.g., court doctrines favoring specific enforcement of time limits in contracts for cutting of timber and labor liens for loggers.

--Professor Richard Aaron