The Online Library of Liberty

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• Foreword
• Zane’s Legal Career
• An Appreciation
• Introduction
• Chapter 1: The Physical Basis of Law
• Chapter 2: Law Among Primordial Men
• Chapter 3: The Aryan Law
• Chapter 4: Babylonian Law
• Chapter 5: The Jewish Law
• Chapter 6: Law Among the Greeks
• Chapter 7: A Greek Lawsuit
• Chapter 8: Greek Philosophy of Law
• Chapter 9: The Roman Creation of Modern Law
• Chapter 10: The Greek Compilation of Roman Law
• Chapter 11: Medieval Law In Europe
• Chapter 12: The Origins of English Law
• Chapter 13: English Law—righteous and Unrighteous
• Chapter 14: The Reconciliation of the English Systems of Law
• Chapter 15: The Absolute Reign of Law
• Chapter 16: International Law
• Chapter 17: Conclusion
• Appendix: the Five Ages of the Bench and Bar of England
• Introduction
• The Five Ages of the Bench and Bar of England *
• I.: The Golden Age of the Common Law: From the Norman Conquest to the Death of Bracton 2
• II.: The Silver Age of the Common Law: From the Accession of Edward I. To the Death of Edward III. 6
• III.: The Bronze Age of the Common Law: From the Death of Edward III. To the Death of Littleton 10
• IV.: The Iron Age of the Common Law: From Henry VII. To the Revolution of 1688 16
• V.: The Period of Reform: From William III. To Victoria 24

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:

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 in today’s age of specialization: that of advocate scholar. Beginning with an article on mining law that appeared in the Harvard Law Review in 1902, he published important articles in leading journals for the next three decades. He also published works on classical Rome and Roman law and Abraham Lincoln’s constitutional theory, in addition to The Story of Law and his treatise on banking law. With Carl Zollmann, he also prepared in 1923 the ninth edition of Bishop on Criminal Law, a basic legal treatise that had been in print since the 1850s.20

In his later years, Zane threw himself passionately into the Chicago literary scene. He had been a member of the Caxton Club since 1916, and in 1928 he was elected its president.21 Zane’s election occurred at a particularly fateful time. The stock market crash of 1929 devastated the membership, and Zane was called upon to keep the club alive. The Caxton Club’s history records that he performed this task with admirable success. He convinced many members to rescind their resignations and devised a variety of expedients to keep the club active despite its desperate financial state, such as luncheon gatherings that featured outstanding public speakers on important issues of the day. Correspondence in the club’s archives indicates the extent of Zane’s efforts to keep the club solvent. When the club published his work on Lincoln’s constitutional thought, Zane felt it necessary to indemnify the club against any risk of financial loss.22

Zane remained active until the very end of his life. He continued to litigate and was reelected president of the Caxton Club in 1937, at the age of seventy-four. His final paper, “Oratory Is No More,” delivered before the Chicago Literary Club in April 1937, is a stirring reminiscence, drawn from classical sources such as Cicero and Quintilian, and more recent sources such as Edmund Burke, of the qualities of good oratory and a lament that mass democratic movements and new technologies such as the radio have destroyed the orator and replaced him with the demagogue.23 John Zane died unexpectedly on December 6, 1937, while visiting Pasadena, California.

[9. ]“John M. Zane,” Chicago Bar Record 19 (1938): 165.

[10. ]The mining case was Wasatch Mining Company v. Crescent Mining Company, 7 Utah 8 (1890). This case was heard twice by the United States Supreme Court, although John Zane took no part in its appeal. See Wasatch Mining Company v. Crescent Mining Company, 148 U.S. 293 (1893); Crescent Mining Company v. Wasatch Mining Company, 151 U.S. 317 (1894). The women’s suffrage case was Anderson v. Tyree, 12 Utah 129 (1895). Zane took the position in this case that the Utah Enabling Act, which established the ground rules by which Utah was to be admitted to the Union, had abrogated prior territorial law conferring a broad suffrage on women. The anti-polygamy case was Cope v. Cope, 7 Utah 63 (1890), in which Zane argued that federal law prohibited children born of wives other than the first in polygamous unions from taking under territorial inheritance laws. This case was also appealed to the United States Supreme Court, which agreed with Zane’s position, although Zane did not argue the appeal. See Cope v. Cope, 137 U.S. 682 (1891).

[11. ]See John Maxcy Zane, “The Constitution of Utah,” Report of the Third Annual Meeting of the State Bar Association of Utah 18–39 (1896).

[12. ]Simeon P. Shope, one of the named partners, had formerly served as a justice of the Illinois Supreme Court. Zane would eventually leave the Shope firm and practice as the lead partner of several firms: Zane, Busby, and Weber; Zane, Morse, McKinney, and McIlvaine; and Zane and Norman. Harold Norman, Zane’s final law partner, practised with him from 1920 to 1937 and remained a fixture on the Chicago legal scene until the late 1970s.

[13. ]See John Maxcy Zane, The Law of Banks and Banking, Including Demand and Notice of Dishonor Upon Commercial Paper (Chicago: T. H. Flood, 1900).

[14. ]Ibid., p. 3.

[15. ]The reviewer for the American Law Register declared: “This work, we can safely assert, is more than a restatement of the law of banking. It is a very thorough treatise upon the theory underlying that law. The author is a forceful and original thinker; and, while he admits that not all his doctrines are in accord with authority, they are well defended in the text.” See “Book Review: Banks and Banking,” American Law Register 48 (1900): 563. The reviewer for the American Law Review, on the other hand, took Zane to task for attempting to do too much in one book, and, in an ironic passage, stated that despite a literary style that the reviewer found obscure and disagreeable in the extreme, Zane “generally succeeds in setting the courts right.” See “Book Review: Zane on Banks and Banking,” American Law Review 34 (1900): 638, 639.

[16. ]The last reported citation of Zane’s treatise occurs in 1943. See Bromberg v. Bank of America National Trust and Savings Association, 58 Cal.App. 2d 1, 135 P.2d. 689 (1943).

[17. ]See, for example, Carson Investment Company v. Anaconda Copper Mining, 26 F.2d 651 (9th Cir., 1928) (involving patents on furnaces for the smelting of copper and other ore); General Motors Corporation v. Swan Carburetor Company, 88 F.2d 876 (6th Cir., 1937), cert. den., 302 U.S. 691 (1937) (involving patents on automotive manifolds and carburetors); Motor Improvements, Inc. v. A.C. Sparkplug Company, 80 F.2d 385 (1935), cert. den., A.C. Sparkplug Company v. Motor Improvements, Inc., 298 U.S. 671 (1936) (involving patents on automotive oil filters); Bell and Howell Company v. Bliss, 262 F. 131 (7th Cir., 1919) (involving patents on film production equipment); General Motors Corporation v. Blackmore, 52 F.2d 725 (6th Cir., 1931) (involving patents on curtain rods for automobile touring cars); Bird v. Elaborated Roofing of Buffalo, 256 F. 366 (2d Cir., 1919) (involving patents on chemically treated roofing materials); Keystone Driller Company v. Byers Machinery Company, 4 F.Supp. 548 (N.D., Ohio, 1929) (involving patents on an excavating shovel capable of breaking through shale and sandstone); and Chicago Flexible Shaft Company v. Katz Drug Company, 72 F.2d 548 (3d Cir., 1934) (involving the “Mixmaster” kitchen appliance trademark).

[18. ]See Tilden v. Quaker Oats Company, 1 F.2d. 160 (7th Cir., 1924) (antitrust); Burke v. Sanitary District of Chicago, 32 F.2d 27 (7th Cir., 1929), cert. den., Burke v. Sanitary District of Chicago, 280 U.S. 585 (1929) (eminent domain); Parker, Webb, and Company v. Austin, 156 Mich. 573, 121 N.W. 322 (1909) (constitutional challenge to administrative power).

[19. ]See Swanson v. Sears, 224 U.S. 180 (1912) (a mining case); Wabash Railroad Company v. Hayes, 234 U.S. 86 (1914) (a workers’ compensation case); Board of Commissioners of the City and County of Denver v. Home Savings Bank, 236 U.S. 101 (1915) (a municipal bond case); Toledo Scale Company v. Computing Scale Company, 261 U.S. 399 (1923) (patent case over rights to a new type of scale); Reinecke v. Spalding, 280 U.S. 227 (1930) (taxability of income derived from mining activity); Pick Manufacturing v. General Motors Corporation, 299 U.S. 3 (1936) (challenge under the Clayton Act to the relationship between automobile manufacturers and dealers).

[20. ]Joel Bishop, the author of Bishop on Criminal Law, was one of the most important of the nineteenth-century treatise writers, although he is barely remembered today. The foundations of his scholarship are reviewed in Stephen A. Siegel, “Joel Bishop’s Orthodoxy,” Law and History Review 13 (1995) 215–59. Carl Zollmann was one of the more prolific treatise writers of the first half of the twentieth century, producing major works on banking law and aviation law.

[21. ]Named for William Caxton, who in 1475 produced the first printed books in England, the Caxton Club is a Chicago-based club of bibliophiles that has served both as a gathering place for book lovers and as a publisher of limited edition books of especially high quality. On the Caxton Club, see Frank J. Piehl, The Caxton Club, 1895–1995: Celebrating a Century of the Book in Chicago (Chicago: Caxton Club, 1995).

[22. ]Memorandum of agreement by John M. Zane, dated April 21, 1932. I am grateful to Frank J. Piehl and Brother Michael Grace, S.J., both of the Caxton Club, for information concerning this aspect of John Zane’s career.

[23. ]“Oratory Is No More” remains unpublished. A manuscript can be found in the Newberry Library of Chicago.