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