American law and the constitutional order: historical perspectives 9780674025264, 9780674025257

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American law and the constitutional order: historical perspectives
 9780674025264, 9780674025257

Table of contents :
Part One American Legal Culture (page 1)
1 The Law in United States History (Willard Hurst, page 3)
2 Notes Toward a History of American Justice (Lawrence M. Friedman, page 13)
Part Two Studies in Colonial Law (page 27)
3 King's Law and Local Custom in Seventeenth-Century New England (Julius Goebel, Jr., page 29)
4 The Legal Heritage of Plymouth Colony (George L. Haskins, page 38)
5 The Politics of Law in Colonial America: Controversies over Chancery Courts and Equity Law in the Eighteenth Century (Stanley N. Katz, page 46)
6 Law and Enforcement of Morals in Early America (David Flaherty, page 53)
Part Three The Revolution and the New Constitutional Order (page 67)
7 Popular Uprisings and Civil Authority in Eighteenth-Century America (Pauline Maier, page 69)
8 Federalism and the Constitution: The Original Understanding (Harry N. Scheiber, page 85)
9 Liberty and the First Amendment: 1790-1800 (Leonard W. Levy, page 99)
Part Four Law and the Economy in Ante-bellum America (page 107)
10 The Release of Energy (Willard Hurst, page 109)
11 An Overview of American Land Policy (Paul W. Gates, page 121)
12 Property Law, Expropriation, and Resource Allocation by Government, 1789-1910 (Harry N. Scheiber, page 132)
13 The Transformation in the Conception of Property in American Law, 1780-1860 (Morton J. Horwitz, page 142)
14 The Law of the Commonwealth and Chief Justice Shaw (Leonard W. Levy, page 151)
Part Five Crime, Criminal Justice, and Violence (page 163)
15 Emerging Notions of Modern Criminal Law in the Revolutionary Era: An Historical Perspective (William E. Nelson, page 165)
16 Violence and Vigilantism in American History (Richard Maxwell Brown, page 173)
17 Urbanization and Criminal Violence in the Nineteenth Century: Massachusetts as a Test Case (Roger Lane, page 191)
Part Six Slavery and the Civil War (page 201)
18 Chattels Personal (Kenneth M. Stampp, page 203)
19 The American Civil War as a Constitutional Crisis (Arthur Bestor, page 219)
Part Seven The New Legal Order: Reconstruction and the Gilded Age (page 235)
20 The Reconstruction of Federal Judicial Power, 1863-1876 (William M. Wiecek, page 237)
21 Justice Field and the Jurisprudence of Government-Business Relations: Some Parameters of Laissez-Faire Constitutionalism, 1863-1897 (Charles W. McCurdy, page 246)
Part Eight Progressivism and the Law (page 267)
22 Social Change and the Law of Industrial Accidents (Lawrence M. Friedman and Jack Ladinsky, page 269)
23 Legal Progressivism, the Courts, and the Crisis of the 1890s (Arnold M. Paul, page 283)
Part Nine Crime and Social Control in the Twentieth Century (page 291)
24 Behavior Modification in Total Institutions: An Historical Overview (David J. Rothman, page 293)
25 Urban Crime and Criminal Justice: The Chicago Case (Mark H. Haller, page 304)
Part Ten Race Relations and the Law (page 315)
26 Negro Involuntary Servitude in the South, 1865-1940: A Preliminary Analysis (William Cohen, page 317)
27 Moorfield Storey and the Struggle for Equality (William B. Hixson, Jr., page 331)
28 Earl Warren and the Brown Decision (S. Sidney Ulmer, page 343)
Part Eleven The Bar and the New Jurisprudence (page 351)
29 Lawyers and Clients in the Twentieth Century (Jerold S. Auerbach, page 353)
30 American Jurisprudence between the Wars: Legal Realism and the Crisis of Democratic Theory (Edward A. Purcell, Jr., page 359)
Part Twelve The Regulatory and Welfare State (page 375)
31 The New Property (Charles A. Reich, page 377)
Part Thirteen The Contemporary Legal Order (page 395)
32 Judicial Review and Basic Liberties (John P. Frank, page 397)
33 Toward Neutral Principles of Constitutional Law (Herbert Wechsler, page 408)
34 Social Cohesion and the Crisis of Law (David M. Potter, page 420)
Notes (page 435)
Contributors (page 521)

Citation preview

American Law and the Constitutional Order


American Law and the Constitutional Order Historical Perspectives

Edited by

Lawrence M. Friedman and

Harry N. Scheiber

Harvard University Press

Cambridge, Massachusetts, and London, England

Copyright © 1978 by the President and Fellows of Harvard College

All rights reserved

Printed 10 9 8 7in6 the 5 United States of America

Main entry under title: | , Library of Congress Cataloging in Publication Data |

American law and the constitutional order. 1. Law — United States — History and criticism — Addresses, essays, lectures. 2. United States — Constitutional history — Addresses, essays, lectures. I. Friedman, Lawrence Meir, 1930- II.

Scheiber, Harry N. KF352.A79 340’.0973 77-16640 | ISBN 0-674-02525-3(paper) (cloth), | | | , ISBN 0-674-02526-1

To Willard Hurst



The last fifteen years have witnessed a rooms, in the daily transactions of people vigorous resurgence of interest in Ameri- in the marketplace and in their voting on can legal and constitutional history in the election days. For much of the history of

nation’s universities. For many years pre- this country, law at the federal level has ,

viously, legal history, when it was taught been only one element (and not, by any at all, was in most law schools restricted means, uniformly the most important) in a to tracing the rise of the common law — much broader process by which Ameriwhich meant British legal history roughly cans have ordered their lives, their busifrom the Norman Conquest to the death of ness, and their social relations.

Henry VII. Modern British law and most Rediscovery and analysis of law in the

of American law (especially in the full richness of its historical complexity national period) were strangely neglected. have their counterparts in historical Outside the law schools as well, univer- scholarship more generally. Economic sity curricula ignored a significant por- historians have been reappraising the

tion of American legal history. To be sure, institutional structure of the ‘‘market.”’ there was a vigorous tradition of research They have been reexamining assumptions and teaching in constitutional history; but about the rationality of market behavior courses and seminars rarely gave system- and the alleged ‘‘autonomy’”’ of market atic attention to the history of law in the forces in light of formal legal institutions states — or indeed to some of the larger and informal social behavior that reveal

issues relating to American legal culture social mores and behavioral norms

and institutions. regarding law. Social historians have

Now, as a result of several important been examining American communities lines of inquiry by students of law, his- more closely, and they have sought to tory, and social science, the tide has define the meaning of the full range of shifted. It is becoming well recognized ‘ordinary transactions’? in a _ society that law has had a significant place in whose functioning cannot be well enough American development that reaches far illuminated by exclusive attention to the

beyond the federal Supreme Court. Law great lightning flashes that emanate from has played its role on many stages—state, Washington. local, and national, in lawyer’s offices, at The tendency of Americans to use (or the desks of registers and receivers of the overuse) formal legal institutions was federal and state land offices, in corpora- noticed in the 1830s by Tocqueville, and

tion boardrooms and legislative cloak- the tendency has not lessened with the vii

Preface . viii

years. When a society lacks certain func- their needs and tastes, though within a tional equivalents for law, it will make single legal culture (and bound together heavy use of formally structured legal to a certain extent by the similarity of - institutions. Every society requires tools their people and the common background of social control — in other words, author- of lawyers and judges). Local autonomy is

ity. No one has improved upon Max hard pressed to maintain itself in the Weber’s well-known threefold classifica- twentieth century. Curiously, the constition of types of legitimate authority: the tutional regime itself is now one of its charismatic, the traditional, and the ra- —_ enemies: it is the vehicle through which tional-legal. In America, “charisma,” as some kind of common basis of order is

Weber defined it, has always beenin short —_ imposed on the states and the cities. To an

, supply. One can certainly find charisma- astonishing degree, in the last generation

tic authority in American history constitutional law has been extending its (Brigham Young is a good example), but —_ reach into other parts of the legal tradi-

we can safely discount its general impor- tion. Almost no field of law today is

tance. Traditional authority, too, has been untouched by national rules and interests; weaker in the United States than in other almost no field is exempt from standards

societies. The early colonial theocracies forced on it through the use of one or

tried to minimize the use of formal law, or more of the lapidary phrases of the federal to take the law into their hands and rule in Constitution, vigorously and imaginati-

their own discretion under the cover of _ vely interpreted by the federal courts. divine authority. Their attempts, in the What was more local a century ago than

long run, failed. — , selling wheat, or going to school, or In general, the United States has been arresting a drunk? Yet federal rules and so heterogeneous, so large and loosely standards are now intruders in all of these

populated, that the traditional patterns of = areas. authority and stratification, brought over The history of law is a vital field, a

from European society, lost their magic growing field, and a field that has much to and their power. No doubt an abundance offer the student, despite the technicality of land and a high degree of social mobil- and jargon that lawyers have traditionally

ity also helped undermine traditional used as wrappings for their packages. authority. Under these circumstances Once the hurdles of language are over-

Americans turned to law, sometimes per- come, the inherent drama of the subject is haps unconsciously, for want of a better bound to engage the student. These readglue to keep society cohesive. Hence, the ings are offered toward that end. | story of law and legal institutions is at the In this volume we have sought to prescenter of American development in a way ent a sample of useful and stimulating that itis notin Chinaorevenin France. = —_work in legal and constitutional history.

! For two hundred years, moreover, the — We say “sample,”’ because obviously we

United States has been a federal republic; have had to make hard choices, and while and for a hundred and fifty years before we include among our authors many who that, it was a collection of colonies that have been leaders in this field, others who

owed some sort of common allegiance to have made important contributions are

the British crown, but almost none to one __ not represented. The choices were made another. Under these circumstances, an _— with the aim of striking a balance between inherited legal language split into a babel the history of constitutional law and the of dialects, just as the Latin of the Roman larger history of American legal institu-

Empire disintegrated into the various tions. The selection may help to redress

Romance tongues. For most of our history what has been mentioned as a deep-seated the states have been able to go their own imbalance in teaching and scholarship—

ways, fashioning legal systems to suit the excessive, almost exclusive, attention



given to federal constitutional history. It studies from sociology, political science, is indicative of the great interest in law and economic history. We are grateful to that prevails at the frontiers of scholarship the authors, publishers, and journal editoday that we can include not only works tors who have extended permission to from history and law but also exemplary include the studies in this collection.

| Lawrence M. Friedman , Harry N. Scheiber



Part One American Legal Culture 1 1 The Law in United States History 3

Willard Hurst ,

2 Notes Toward a History of American Justice 13 Lawrence M. Friedman

Part Two Studies in Colonial Law 27 3 King’s Law and Local Custom in Seventeenth-Century New England 29 Julius Goebel, Jr.

4 The Legal Heritage of Plymouth Colony 38 George L. Haskins

5 The Politics of Law in Colonial America: Controversies over Chancery Courts

and Equity Law in the Eighteenth Century 46 Stanley N. Katz

6 Lawand the Enforcement of Morals in Early America 53 David Flaherty

Part Three The Revolution and the New Constitutional Order 67 7 Popular Uprisings and Civil Authority in Eighteenth-Century America 69 Pauline Maier

8 Federalism and the Constitution: The Original Understanding 85 Harry N. Scheiber

| xi

9 Liberty and the First Amendment: 1790-1800 99 Leonard W. Levy

Part Four Law and the Economy in Ante-bellum America 107 10 #£The Release of Energy 109 Willard Hurst


Contents , | / 11 An Overview of American Land Policy 121 ——- Paul W. Gates | 12 Property Law, Expropriation, and Resource Allocation by Government,

1789-1910 132

Harry N. Scheiber 13 The Transformation in the Conception of Property in American Law,

1780-1860 142 , .

Morton J. Horwitz

Leonard W. Levy , |

14 The Law of the Commonwealth and Chief Justice Shaw 151

| Part Five Crime, Criminal Justice, and Violence 163

15 Emerging Notions of Modern Criminal Law in the Revolutionary Era: An

Historical Perspective 165 William E. Nelson 16 Violence and Vigilantism in American History 173 Richard Maxwell Brown oe , | 17 Urbanization and Criminal Violence in the Nineteenth Century:

Roger Lane _ Cs Part Six Slavery and the Civil War 201 | , Massachusetts asaTestCase 191 ,

18 Chattels Personal 203 ces ,

, ~19Kenneth M. Stampp | The American Civil War as a Constitutional Crisis 219

Arthur Bestor ; 7

Part Seven The New Legal Order: Reconstruction and the Gilded Age 235 20 The Reconstruction of Federal Judicial Power, 1863-1876 237

, ~ William M. Wiecek |

21 Justice Field and the Jurisprudence of Government-Business Relations: Some Parameters of Laissez-Faire Constitutionalism, 1863-1897 = § 246

CharlesW.McCurdy | | |

PartEight | Progressivism andthe Law — 267 — } 22 Social Change and the Law of Industrial Accidents | 269

, Lawrence M. Friedman and Jack Ladinsky

oe Arnold M. Paul | ,

23 Legal Progressivism, the Courts, and the Crisis of the 1890s = 283

Part Nine Crime and Social Control in the Twentieth Century 291 24 Behavior Modification in Total Institutions: An Historical Overview 293

David J. Rothman , ,

25 Urban Crime and Criminal Justice: The Chicago Case © 304

Mark H. Haller ,



Part Ten Race Relations and the Law 315 26 Negro Involuntary Servitude in the South, 1865-1940: A Preliminary

Analysis 317

William Cohen

27 Moorfield Storey and the Struggle forEquality 331

, William B. Hixson, Jr. 28 Earl Warren and the Brown Decision 343 S. Sidney Ulmer

Part Eleven The Bar and the New Jurisprudence 351 — 29 Lawyers and Clients in the Twentieth Century 353 Jerold S. Auerbach 30 American Jurisprudence between the Wars: Legal Realism and the Crisis of

, Democratic Theory 359 Edward A. Purcell, Jr.

Part Twelve The Regulatory and Welfare State 375

31 The New Property 377 Charles A. Reich

Part Thirteen The Contemporary Legal Order 395 32 Judicial Review and Basic Liberties 397 John P. Frank

| 33 Toward Neutral Principles of Constitutional Law 408 Herbert Wechsler

34 Social Cohesion and the Crisis of Law 420 David M. Potter

| Contributors 521 | Notes 435


American Law and the Constitutional Order


Part One -

American Legal Culture

Chapters 1 and 2 introduce the reader in a fortunes of agriculture and other extracgeneral way to what is distinctive in the tive industries,’ for example. Such topics American legal tradition. Willard Hurst illuminate how law works its influence in

considers the rule of law and its role in every corner of social life in ways that the development of American society, prove, in the long run, decisive. Hurst with particular emphasis on how law warns us against the “bias toward themes served the economy. He tries to catalog of conflict,’ themes ‘‘which emphasize

the various functions of law in the society conscious and debated decisions.’ The

of the United States, particularly its most important events in legal history

impact on the marketplace. His conclu- may not be dramatic events at all, but the

sions incline him to find previous cumulative effects of tiny acts — buying

research in legal history to be wanting, and selling land, cutting timber, and makone-sided in many regards, and skewed in ing out promissory notes. These bits of the direction of the dramatic and the behavior in the aggregate may transform overtly political. It has overlooked or neg- the economy and revolutionize the socilected the richness of legal data. What, for ety. Historians should study every nook example, is the relationship between the and cranny of the legal system, examining very distinctive use of law in the United “social inertia and social drift,’’ as well as

States and the distinctiveness of Ameri- “conscious contrivance.’’ The reader can society? This is the kind of question should consider what is gained — and that Hurst believes should be at the very what is lost — through this perspective

heart of legal history. and this approach to legal history.

Hurst’s influence on American legal Lawrence Friedman’s essay stresses the historiography has been great. He has role of law as an instrument of social coninsisted on rejecting legal history that is trol; his major focus is on criminal justice

written in terms of ‘topics defined by and the relationship between the moral

legal categories.’’ He is not concerned ideas of the community and its patterns of with the great “‘consitutional debates’’ so law enforcement. Friedman looks on much as with less obviously dramatic various trends — the shifting public attitopics, the “relation of tax policy to the tudes toward victimless crimes, for exam1


American Legal Culture

ple — and speculates about the currents of Law in American History. Boston: Little, thought and patterns of behavior in the Brown, and Co., 1971.

larger society that produced them. Friedman, Lawrence M. A History of

The two essays share one common American Law. New York: Simon & Schuspoint of view: they find the prime source ter, 1973. of legal change outside the law and Hurst, Willard. The Growth of American

within society itself. Law: The Law Makers. Boston: Little, Brown,

| and Co., 1950.

Further Reading ——. Law and Social Process in United Bloomfield, Maxwell. American Lawyers States History. Ann Arbor: University of in a Changing Society, 1776-1876. Cam- Michigan Law School, 1960. bridge, Mass.: Harvard University Press, White, G. Edward. The American Judicial

| 1976. Tradition. New York: Oxford University Fleming, Donald, and Bernard Bailyn, eds. Press, 1976.

Willard Hurst

The Law in United States History

Not only the man in the street but also knowing more about the law’s professional students of society hold very contribution. limited images of what “law’’ means. Criminal trials and constitutional Most often they take it to mean simply the debates are important. Important, too, in drama of criminal trials: Perry Mason on ways which to a distressing degree are not Saturday-night television, the lurid prom- understood even by well-educated men, is

ise of the murder yarns on drugstore the formality of legal process. But these racks. If they think of law in a little aspects of legal order, however important,

broader reference, probably it will be in fall far short altogether of representing the terms of a remembered picture in a high significance of legal process in this socischool history text of portly gentlemen in ety. A more adequate definition of the frock coats striking attitudes: Webster attributes of our legal order suggests that replies to Hayne. If one presses them, the study of law in these terms — and in par-

social scientists at least may concede ticular study of legal history in these

there is more to law than this. Law, they terms — should contribute more to the will grant, states a great many doctrines understanding of the society than the lay which provide much of the vocabulary of stereotypes would indicate. public-policy discussion. But this is, after For studying social process, the most all, largely formal stuff; sophisticated stu- useful definitions of law are made in dents know that reality lies in the sub- terms of social functions of law. What are stance, in operations, in getting behind the most distinctive and most important the law’s formalism to the hard facts of jobs we have asked the law to do in this interest and practical maneuver. So much society? This asks for a modest definition: for law — and little wonder, then, if nei- not what is ‘‘law’’ anywhere, anytime, but ther the man in the street nor the student what has law been in the development of

of society shows much curiosity to learn this particular society. This modesty is what aspects of social events or social appropriate to the limits of what we know processes might be better illumined by about the social functions of legal order. It

Reprinted with minor editorial changes, from Pro- is appropriate also to a definition of law ceedings of the American Philosophical Society, looked at historically, because history vol. 104, no. 5 (October 1960), pp. 518-526, by regards events, that is, looks at processes

permission. always in particular context. Moreover, 3


Willard Hurst

_ this relativist definition of law is pecu- In other words, this legal order was charliarly appropriate to our situation. For we acterized by strong insistence on procehave taken as a central value the idea that dural regularity. (4) Finally, we assigned legal order should find its warrant in serv- to legal process important roles in allocating men as they strive to realize the larger ing scarce resources — of manpower and

potential of being — which means that human talent, as well as of nonhuman law must find its warrant in relation to sources of energy — for shaping the gen-

particular experience. eral course of economic development. Four functions have been especially This was an especially important use of important to defining law’s roles in the law, in a society which believed that in growth of this society. (1) To law we economic creativity it held the means to

assigned the legitimate monopoly of vio- fashion new standards of human dignity. lence; normally only the policeman goes At the outset government here held the armed. As a corollary, to law we assigned unique asset of the public domain, which

| ultimate scrutiny of the legitimacy of all we spent to help build turnpikes, canals, forms of secular power developed within and railroads and to create in the Missis-

the society — that is, of all means by sippi Valley a republic of family farms.

which some men may exercise over the Likewise, we made bold use of taxing and wills of other men. Modes of competition spending powers of national, state, and and forms of private association thus exist | local governments to help create the subject to legal regulation to protect the framework of economic growth. Resource public interest. (2) We used law to define allocation by law was the more striking in and to implement an idea of constitution- our history because we placed great reli-

alism as the norm of all secular power. ance on broad dispersion of economic This is an idea which with us had refer- decision making into private hands

ence to all forms of secular power, not through the market, implemented

merely to official power. It meant, first, through the law of property and contract. that we believed there should be no center We supplemented private energies in the of secular power which was not in some market by important delegations to nonofway subject to review by another center of ficial persons of powers of public con-

such power. If there seems something cern. We gave railroads the right of paradoxical in this notion, the historic eminent domain; we granted franchises to :

record nonetheless shows that we lived by enterprisers to conduct public utilities it; for example, we used law to foster and and to charge toll for their services; by protect the growth of private (that is, non- grant of limited liability to corporation _official) associations like the business cor- — stockholders and by contract, property, poration or religious, political, and social —_and tort doctrines which in effect favored

associations, to build centers of energy venture, we encouraged men to take the and opinion which might provide coun- risks of action, letting losses lie where terweights to official power. Thus we they fell unless someone who had been sought to make all secular power respon- hurt showed compelling reason why the

sible to power outside itself, for ends law should help shift the burden. which it alone did not define. But respon- These uses of law mean that law wove sibility means nothing until we know, itself into the organization and processes responsibility for what? The second and _ of this society in ways which should make most distinctive aspect of our insistence the study of legal process — and in particthat all secular power be responsible (con- ular of legal history — important to social

stitutional) power was that we held the science. (1) Because it held the legitimate final measure of responsibility to be in monopoly of force, and incident thereto serving individual life. (3) We used law to the authority to call to account all other promote formal definition of values and of forms of secular power, law bore some appropriate means to implement values. relation to all types of association and all


The Law in United States History

means for mustering collective will and achieve by reason; indeed, reason probafeeling. The obverse of free religious asso- bly finds justification ultimately only as

ciation here, for example, was the legally an instrument by which men achieve embodied policy of separation of church more subtle, more varied, and more and state. (2) Because North American shared emotion. So qualified, however, legal order sought to give content to the and always within the framework of a idea that all power must be constitutional constitutional ordering of power, the (responsible) power, law entered into the increase in men’s rational competence practical meaning that individuality had and the extension of more rationalized in this society. The constitutional charac- processes of human relations ranked high ter of this legal order likewise meant that among the organizing values of this socilaw was actually or potentially part of the ety. Legal process ranked with industrial social structure and social process; there technology and with organized science as was no pattern of social organization, no a major means for enlarging the scope of procedure of social interaction whose sig- rationalized behavior. In the second half

nificance could be appraised without tak- of the twentieth century the trend of

ing into account the demands which an events seemed likely to give larger imporideal of constitutional order either did in tance to the law’s rationalizing role, in the

fact make on it, or should make on it. interests of maintaining a vital constituThus, for example, we cannot tell the tional tradition. The pressure of scientific story of the status and roles of women in and technical rationalization of social the United States without including the processes increased the scale and intrimeaning which the movements for mar- cacy of social organization, the demands ried women’s property legislation and made in the name of organizational integequal suffrage had for defining the condi- rity and efficiency, and the inertia created

tion of woman as an effective member of by organizational mass. Legal procedures | the society. Again, we cannot understand in part had served and would continue to _the social history of the business corpora- serve to provide a framework of reasontion without including the search for ably assured expectations, backed by the acceptable definitions in law of the force of the state, within which a complex gounds on which, first, the practical social division of labor could work. More power of corporate owners and, more important, however, in our tradition legal recently, of corporate management may procedure had the ultimate function of establish legitimacy. (3) Because this legal implementing the constitutional idea — order emphasized procedural regularity that choices, and the costs as well as gains — providing diverse organized means for of choices, be brought to definition, that bringing choices to definition and muster- power holders be made to account for ing evidence and reasoned argument for their use of power, and in the last analysis their resolution — law entered signifi- that power be used to serve individual cantly into the process by which men life. That growth proceeded along these created social goals and mobilized ener- lines was witnessed by the painful efforts gies of mind and feeling to move toward to hammer out a law of labor relations their goals. Of course we must not exag- within which management and labor gerate the rationality of the law, any more might create a kind of due process and than that of other insitutions. Regard for equal protection of law to govern the procedures tends to create inertia or com- ‘discipline of the modern factory. (4) Beplacency with familiar ways; passion and cause we used law boldly as a means of

prejudice color legal operations as they resource allocation — with at least as color any human operations where men great effect as we used the market — the

feel deep concern about the stakes. More- history of legal process was woven closely

over, how men feel is at least as valid a into the general growth of the economy

part of their experience as what they and of key relations of social and eco-


Willard Hurst

nomic power in the United States. The Anglo-American law men are by tradi-

terms on which we disposed of the public tion and training biased toward equating

domain in the Mississippi Valley, for law with what judges do, to the neglect example, materially affected the develop- not only of legislative, executive, and ment of a tradition of agrarian political administrative activity, but also to the revolt on the one hand, and on the other neglect even of the out-of-court impact of the growth of the political as well as busi- the work of lawyers, let alone the addiness and social power of big corporations, tions or subtractions made in legal order of which the first models were the land- by lay attitudes and practices affecting grant railroads. The public domain no legal norms. We early trained lawyers by longer offers government the unique apprenticeship which taught them court leverage it afforded for nineteenth-cen- pleadings and client caretaking. When tury social planning — though current the principal revolution in legal educacontroversy over franchises for use of the tion arrived in the 1870s, it was organ-

airwaves reminds us that social growth ized about the case method of

may bring new areas of public domain instruction, which again emphasized the

into policy significance. However, work of courts. Most of the business of

through its fiscal powers twentieth-cen- the bar through the nineteenth century tury government plays as large a role in had to do with the property and contract affecting the directions and content of the affairs of clients, and most of the law of commonwealth as did nineteenth-century these fields was common (that is, judgegovernment through the public lands. made) law, so that through the formative

Demands upon the resources-allocation period of our main legal tradition the

functions of law continue to involve law focus remained on the judicial process. in the main processes of social change Thus, first our treatise writing and later

and stability. the writing done for legal journals dealt mainly with public policy as declared by

This essay seeks to appraise United courts. This bias of professional thinking States legal history as a field of scholar- was not affected by the fact that through ship, in its promise and in its develop- the nineteenth century Congress and the ment to date. I need not, nor could I state legislatures churned out large quanwithin this span, take stock of the whole tities of important legislation, or by the reach of research in law. However, what fact that in great areas of policy which can be said of the discipline of legal his- did not lend themselves easily to comtory applies in large measure to other mon-law development the framework of

types of legal research. the law was erected mainly in statutes (as Four limitations of the general product in the law of the public lands, public attest the want of philosophy in the study education, public utilities, highways, of North American legal history. (1) His- health and sanitation, or the organization

torians have exaggerated the work of of local government). From limited courts and legal activity immediately beginnings in the late nineteenth cenrelated to litigation. (2) They have paid tury, executive and administrative law-

too little attention to the social functions making grew to great proportions of law. (3) They have not distributed alongside the statute law. Judicial law-

their effort with adequate response to the making was never as exclusively imporfacts of timing and the reality of major tant as the concentration of legal writing discontinuities in the country’s growth in might seem to show. From the 1870s on, relation to the uses of law. (4) They have legislative, executive, and administrative exaggerated areas of conscious conflict processes definitely became the principal

and deliberated action, at the expense of sources of formed policy. The course realistic account of the weight of social offerings of even the better law schools inertia and the momentum of social drift. were slow to reflect this reality. But legal


The Law in United States History

research was even slower, with legal his- | There are some essays on the history of torians badly lagging the field. Of course — contract law, but little or no effort to the work of the courts continues to be of define or appraise the meaning that con-

great importance. In our time legal and tract law had for the functioning of the nonlegal institutions take on increasing market, the provision of credit, or the size, and there is growing readiness to allocation of gains and costs of business accept demands made on individuals in venture. There are scattered writings the name of the security and operating about the history of the mortgage, the efficiency of large social aggregates. In corporate indenture, the receivership and this context more than ever before the tax law, but we lack the good studies we availability of independent courts and an should have of the historic relations of independent class of professional advo- law to the growth and channeling of cates supported not by grace of the state investment capital. There is a good deal but by private fees, represent basic ele- in print about various aspects of the Bill ments of civil liberty. In the second half of Rights, but no connected story of the , of the twentieth century the courts have implications of civil-rights doctrines for distinctive importance because they are the shifting balance of power among the forum in which individuals and various kinds of groups and between the

small groups, of their own resources, can individual and official and private group best call organized power to account. To power at different stages of the country’s recognize this, however, in no measure growth. Though better than a generation justifies the extent to which legal-history has gone by since we heard the call for a _ writing, along with legal philosophy and sociological jurisprudence, legal-history other legal research, has treated the judi- writing has made little response, but concial process as if it were the whole of __ tinues content on the whole to let the for-

legal order. Symbolic is the fact, for mal headings of the law fix its subject

example, that while twentieth-century matter. It is an ironic course of affairs, in scholarship has given us at least four a society whose tradition is so strongly large-scale treatises, a dozen substantial constitutional, insisting that legal order monographs, and scores of essays in the is not an end in itself but gains legitimate

law journals on the history of constitu- meaning only in terms of its service to

tional doctrine as it has been made by the ends of life outside law.

Supreme Court of the United States, we In the total distribution of effort, there lack a single first-rate modern work on has been a disproportionate attention in the history of constitutional doctrine as it legal-history writing to beginnings —

has been formed in the Congress. and to beginnings in their most obvious

The bulk of legal-history writing has sense — at the expense of proper develbeen about topics defined by legal cate- opment of hypotheses concerning the gories. We have much writing about main lines of growth through to our own

commerce-clause doctrine, but little time. Much attention has focused on

about the meaning of commerce-clause colonial origins, on the period of constidoctrine for the development or opera- tutional experiment from 1776 to 1790, tion of sectional or nationwide marketing and on the successive frontier phases of organization, or about the impress which national expansion. I do not quarrel with such business history may have made on the worth of attending to such formative constitutional principles. There is some periods taken in themselves, but only rather formal history of property law, but with the tendency to fasten onto origins

little history of the significance of fee- without equal curiosity to follow

simple title for types of land use, for the through, and with failure to see that in private and social accounting of income terms of law’s relation to gathering issues and costs of alternative land uses, or for of power and social function there were the political and social balance of power. other less obvious periods of beginnings


Willard Hurst | which should also be studied. First, as an been before the Civil War. The strains example of the want of follow-through, it and conflicts, the gains and losses attenis odd that for so many states we have dant upon this rapid and major alteration writing which, with care sometimes verg- of the country’s power structure and ing on antiquarian enthusiasm, traces the modes of operation provide main themes beginnings of territorial and state courts for legal history which we have hardly

| (once again, the excessive preoccupation begun to explore. The 1930s saw the with judicial process), but little good cumulate impact of trends in social and writing on such basic themes as law’s economic interdependence which had

relation to the creation of transportation been gathering force since World War I. networks, the law’s response to the busi- The challenge of these themes is so large, ness cycle, or the relation of tax policy to indeed, that one may wonder whether the fortunes of agriculture and other more essays on territorial beginnings rep-

extractive industries. These omissions resent contributions to knowledge so are, of course, part of the neglect of the much as refuges from more exacting social-function history of law which I studies. have already noted. But they also repre- Legal-history research may be espesent a neglect of a familiar and important cially subject to a bias toward themes of

time sequence characteristic of the conflict, or at least toward themes which

growth of these states, whose people nor- emphasize conscious and debated deci-

mally established their basic legal insti- sions. Such a bias is favored by the tutions in the nineteenth century with emphasis of our legal order on formal some obvious impatience to get on to procedures. Insofar as they are efficient,

their central care, which was the expan- regular procedures for framing, delibera-

sion of their economy. ting, and adopting constitutions, statutes, Second, on the neglect of the less obvi- executive orders, and administrative ous beginnings, the most notable exam- rules work toward bringing choices to

ple is the relative inattention to the sharp — definition, aligning interested parties,

changes in direction and pace of social promoting expression, and energizing movement which came about in the will. Lawsuits and court decisions work 1830s, the 1870s, and the 1930s. The even more dramatically to these ends.

1830s saw rapid development of markets Hence, insofar as legal-history research and marketing emphasis in the public has tended toward exaggerated emphasis policy making of one state after another, upon the judicial process, it has particuwith reflection especially in the statute larly strengthened a bias toward equating books, as we passed from relatively sim- men’s history with the record of their _ ple agrarian to more commercial and more or less conscious strivings. Yet, the credit-centered economies. The 1870s broader the reach of our hypotheses and saw the rapid cumulation of forces chan- the deeper our concern to study the neled or given new impetus by the new social functions of legal order, the more scale of organization of men and capital — we will learn to respect the relative influ-

and the new techniques of public and ence of inertia and drift in affairs. The private finance generated out of the most realistic view of all aspects of man’s North’s war effort. Change here was far history leads to the conclusion that most

more drastic than in the 1830s and of what has happened to men has hapamounted to a major break in continuity. pened without their wanting it or striv-

Due mainly to the shifts in the size of pri- ing for it or opposing it or — more

vate industrial and financial organization important — without their being aware of

and in the reach of markets which gath- the meaning of trends until patterns of ered force in the seventies, by the late structure and force have developed past : nineties the United States was a qualita- points of revoking. This general judgtively different society from what it had ment seems no less true of legal history


The Law in United States History

in this country. There is peculiar irony in the profound shifts in structure, process, the fact, since it is the business of consti- and attitudes that occurred in the generatutional legal order to promote responsi- tions beginning about 1820 and 1861, ble control of events. No example is more and in the depression 1930s. Legal hisinstructive than the history of antitrust tory has not been made only by quill pen law, whose development both reflected and candlelight. (4) Not with despair but and persistently lagged behind the impe- with realistic estimate of the odds against rious course of revolutions in industrial |= man’s conscious contrivance and out of and financial organization. Aside from conviction that his distinctive quality lies some efforts either to expound or refute in rebellion against the odds, legal hisMarxian styles of hypothesis — and even tory should treat as critical themes the

here the institutional cast of language impact of social inertia and social drift. only thinly disguises villains or heroes Nor can we afford to take this direction felt to be working in the background — with any moral complacency, weighing ~ the writing of North American legal his- our own shrewdness against the blunders

tory has paid little attention to putting of our ancestors. If the more significant

legal phenomena in due perspective rela- decisions regarding natural-resources use | tive to the massive weight of inertia or to were made by default in the nineteenth the implacable movement of decisions century, no less by default have been the

taken by drift and default. twentieth-century decisions on metropol-

| itan growth; if the nineteenth century

If legal-history research and writing in allowed market demands for rail transthis country have moved within too nar- port unduly to determine the course of row limits, the criticisms point to some public policy, no less has the twentieth positive prescriptions. (1) We need to century allowed the immediate conve-

allocate more effort to studying legisla- niences, comforts, and social-status

tive, executive, and administrative proc- markings of the automobile to determine esses as well as the bar’s contributions to a fantastic range of matters of public conthese formal processes and to the infor- cern, from the safety of life to the loca-

mal social regulation that goes on tion of commerce and industry. The

through the market and through private physical size of this country, the invitaassociation. Likewise we need more tions to large-scale economic effort posed attention to ways in which lay attitudes by its natural resources and population toward law (including laymen’s disre- growth, as well as deep-rooted, but littlegard of law or their mistaken images of calculated, faith in the self-evident valit) have affected the creation of institu- ues of growth and movement and change tions of social order other than formal (in intangible senses of status and accom-

legal institutions. (2) Legal history plishment as well as by tangible meashould begin to contribute more to sures of product and location) — such

develop fact-based, fact-tested theories of factors contributed to make provision of social structure and social process. For transport an element of uncommon influexample, we should have more legal his- ence on our public policy, and a good tory written in terms of law’s operational example in both nineteenth- and twen-

significance for the institution of the tieth-century settings of the type of

market, studied in as wide a range of unplanned and largely undirected cumuinterplay of law and market as the wit lation of events which had basic shaping and devotion of legal scholarship can effect upon what law was asked to do

compass. (3) Legal-history writing should and how it did it. !

come to bear with greater emphasis upon There are many profitable directions in the past one hundred years in the United which a broader conception of legal hisStates. Especially should there be sub- tory might take us. I have drawn specific stantial scholarly investment in study of prescriptions from four criticisms of limi-

10 |

Willard Hurst

tations implicit in the bulk of work so far of the President’s Council of Economic done. In addition let me note some more Advisors. Types of public problems vary general developments that would be use- in distinctive character and challenge; ful. Two concern the more effective study types of public agency vary in distinctive of legal institutions themselves. Two capacities, whether born of formal struc-

concern particularly critical kinds of ture and process or of tradition. Legal

meaning which the study of legal history history should lend us more insight into might have for better understanding the the working character, promise, and limi-

general course of this society. tations of formal agencies for making First, as to legal institutions: (1) In public decisions. (2) There is no more times when social change moves fast, badly neglected area of legal research wide, and deep amid peril to the prized than that of sanctions, the comparative

values of a constitutionally ordered com- study of methods of implementing pol-

munity, we need more sophisticated icy. Given life’s infinite variety and the

knowledge of the potentials and the hard limits of social science research

limits of the major agencies of lawmak- techniques so far available, the study of

ing. If no other currents of events sanctions is an area in which we now

enforced this need, it would gain enough stand to gain most from history. Nor urgency because of the extent to which should we view it as the study of factors we depend upon public finance to sus- of secondary importance. The more diffitain the momentum of the economy and cult the basic policy choices, the more

upon foreign policy to maintain the surely must judgments of the promise

national security. On the whole the orga- and costs of implementation enter into nization, procedures, and working tradi- the basic decisions. Moreover, we grow

tions of the legislative and executive into some basic decisions out of experibranches represent responses to condi- ence of what we can expect to do. tions which the fast pace of events has Sophisticated study of experience in

put far behind us. If there need be less enforcing public policy will require overconcern for the adequacy of judicial orga- leaping the limitations which have

nization, this is not because it lacks marked the bulk of legal historical writserious defects. However, the most ing — appraising the interplay of legislaimportant job for the courts in this highly tive and executive with judicial

organized modern society is not that of processes, relating law to the functional general policymaking but of insuring character of other social institutions on some minimum of decent procedural pro- which it impinges, putting legal decitection for individuals and small groups sions and procedures into the proper perconfronting large organized power. On spective of the times in which they are the whole this is a task simpler enough made, weighing the positive investment than general policymaking so that it can of resources which the law must provide be handled with what we have, if bench or direct to obtain desired results. It is a and bar apply their traditions with intel- commentary on the failure of scholarship ligence and courage. The situation is thus far to tackle many major problems, quite different as to the sufficiency of the that, for example, in the 1960s when we legislature and executive before the confront the difficulties of building equal daunting challenges of the times; the dif- protection of the laws for Negroes in votference is reflected, for example, in con- ing and schooling we have no studied temporary controversies over the proper body of experience for guidance in hanroles of legislative investigation and over dling problems of large-scale hostility to functions of the National Security Coun- public policy. If legal historians will set cil or the Joint Chiefs of Staff, or in hear- themselves to significant problems in ings and debates of the Congressional legal sanctions, they will lack no longer Joint Committee on the Economic Report for a more searching philosophy of their


The Law in United States History

discipline; their problems will push them Rights. A broader concern with legal his-

into philosophy. , tory as an avenue to the study of ideas Second, consider two respects in will bring this discipline into relation to

which a broader approach to legal history the most fundamental kinds of social might yield insights of two types espe- analysis as well as into relation with the

cially important to understanding the most critical living problems of our

general life of society. generation.

(1) Because of the four key functions (2) Because legal processes and legal

we have assigned to law — its scrutiny of records bulk large among ways in which

all types of secular power, its constitu- we bring values to definition, a broadly tionalism, its emphasis on procedural conceived legal history could help us

regularity, and its role in resource alloca- come to terms with the good and the bad

tion — but especially because of law’s features of the pragmatic attitudes that formality (its attention to regular proce- are so central in this culture. Our actions dures for examining and taking deci- show that we have believed that within a

sions), law offers peculiarly important framework of generalized values men evidence of the values which give this must make meaning for themselves in a society coherence and vitality. Of course universe whose baffling detail and sweep

this is not true in equal measure of all we favor drift and inertia as the norm of find recorded in law; inertia and drift men’s experience. In this light the main play their roles here, too, so that a prime theme of man’s history is the cultivation job for legal history is to distinguish of his awareness and of his capacities of what has living force from what is dead mind and will to act upon his greater

or dying, deceptive or hypocritical. awareness of his situation. We need to Granted this need for making distinc- strive to see, and to learn what our cre-

tions, legal history, just because of its rel- ative possibilities are by striving to act ative formality, offers unusual evidence upon what we see. The experimental and of the development of the values our peo- activist bias of our culture rests upon ple have held. Thus, study of legal his- these valid insights. On the other hand, tory can make special contribution to the our preoccupation with directed effort general history of ideas. The study of a and what it teaches has led us also into a

people’s values has basic importance to bias toward exalting the immediately understanding a society, for it is the shar- practical — in the sense of knowledge ing of values that provides the bond of which can be translated into immediate lasting human relations, even where (as operations — at the expense of underwith the value we put on the competitive standing larger causes and more remote processes of market) the shared values chains of effects. Thus a valid pragmamay express themselves in secondary tism is constantly at war with an illegiti-

conflict. Study of the growth of shared mate pragmatism in our way of life.

values has special importance not only Because it brings so much focused effort for understanding this particular society, to bear upon making choices and countbut for contributing to its strength. We ing gains and costs, legal process offers have grown fast amid a great bustle of rich tangible evidence of these warring events and subject to major discontinui- brands of pragmatism in our common ties in the emergence of new relations of life. For example, the history of our worpower and process. We need to know ship of the fee-simple title to land — in ourselves in our strengths and failings its fruitful relation to the development of

much better than we do. There is evi- civil liberty, on the one hand, and its

dence of this need in the uncertain alle- unfortunate relation to the waste of natu- ©

giance which common opinion has ral resources, on the other — could be shown under stress even to such tradi- told in ways that would show how legal

tional values as those of the Bill of history might illuminate the sound

12 |

Willard Hurst

growth and also the distortion of prag- bilities. History itself will teach us not to matic values in this society. If the culti- hold a naive faith that men readily learn vation of awareness is the basic theme from history. Moreover, the view I take of which expounds man’s most distinctive man means that there is no need to apollife role, the most characteristic functions ogize for studying history partly because of our legal order — its scrutiny of the there is pleasure in the effort; the enjoyarrangements of power, its insistence on ment lies precisely in man’s nature, for , the responsibility (constitutional status) his life consists most distinctively in his of legitimate power, and on procedural consciousness. But writing and reading regularity, and its uses for resource allo- history are more than aesthetic experi-

cation — point to the intimate relation ences. They are themselves kinds of

which the imaginative study of legal his- activity that constitute man’s distinctive tory should have to the study of general being, which consists in his response to

history. and rebellion against the challenges of an Implicit in what I have said in apprais- impersonal universe. It is in this sense ing some approaches to legal history is that legal-history research and writing the notion that we should study history stand under the functional command to

to learn more about realizing life’s possi- serve the growth of our philosophy.

Lawrence M. Friedman | Notes Toward a History of American Justice |

In Kent County, Delaware, in 1703, Adam nial America. Published colonial records Latham, a laborer, and Joan Mills, wife of show hundreds of similar examples.”

a laborer named Andrew Mills, were We note the tremendous stress on visibrought before the county court. The bility. The whipping post, pillory, and grand jury presented Joan Mills for adul- stocks stood in the public square. They tery. She pleaded guilty to the charge. For did not gather dust. Countless men and

punishment, the court ordered her to be women felt the whip, or stood in the publicly whipped — twenty-one lashes stocks. When Christopher Lawson, of on her bare back, well applied; she was York County, Maine, came into court

also sentenced to prison, at hard labor, for ‘“unsevelly,”’ with a ‘“‘turbilent beheaone year. Adam Latham was convicted of viouer,” in July 1669, he was forthwith fornication. He was sentenced to receive ‘“comited to sitt on ower in the stockes.’’3 twenty lashes on his bare back, well laid In the same volume of records we read

on, in full public view. He was also about Sarah Morgan, who struck her hus-

accused of stealing Isaac Freeland’s dark band, horror of horrors, and was given the

brown gelding, worth two pounds, ten choice of paying a fine or standing fora | shillings. Adam pleaded guilty; for this half-hour at Kittery, at a public town metcrime he was sentenced to another four ting, with a gag in her mouth and ‘“‘the lashes, and was further required to pay for cause of her offence writt upon her forthe gelding. Adam had been in trouble head.’ The law made common use of over Joan Mills before, charged with “the brands and badges of shame. A burglar, Sin of Incontinency and fornication.” At under the Laws and Liberties of Massathat time, he was acquitted, but the court chusetts (1648), was to be ‘“‘branded on the

ordered him to post bond guaranteeing forehead with the letter (B).’’ A second. ‘good behavior.’’ He had broken his offender would be ‘‘branded as before,”’ word. Now he was ordered to ‘‘weare a and whipped. The third offender would Roman T on his left arme on the Outside be ‘‘put to death, as being incorrigible.’’®

of his uppermost garment ... for the Colonies made liberal use of devices such space of six months next.’’! These were as the bilbo, the cucking stool, and, for typical crimes and punishments in colo- military offenders, the wooden horse —

| | all of which carried stigma and shame. —

Reprinted from Buffalo Law Review, vol. 24 (1974), It is a commonplace that social forces p. 111-134 by permission. Copyright, 1974 by Buf- produce law, directly and indirectly. It

falo Law Review. follows that different cultures will make 13

14 |

Lawrence M. Friedman

law in different ways. In every society ticularly in New England, had a clear idea there are the rulers and the ruled: some of what crime meant. Crime was a kind of individuals, groups, and strata have more sin. Society’s leaders did not easily abanpower or influence than others; the law don hope for the sinner. These were, in

that any society makes will reflect the the main, small societies; they believed, interests of those on top to the extent of rightly or wrongly, in repentence and

their superior might. But power and influ- rehabilitation. Except for the most har-

ence do not directly act on law. Law — dened and abandoned cases, it was

statutes, doctrines, legal behavior in gen- thought that men could respond to preseral — comes about only when individu- sure and improve their way of life if they

als and groups make demands on the were instructed in proper behavior, punsystem. Demands, then, rather than inter- ished for wrong conduct, subjected to

ests, are the proximate causes of law. The shame and derision from their neighbors, structure of demands is a cultural factor; and stigmatized when they strayed from

no doubt its shape always reveals the the straight and narrow path. This is the powerful pull of long-term pressures, reason why punishment was so open, so deriving from those with influence and public. The man who was whipped in power. But one cannot deduce the catalog view of everyone was receiving physical

of demands current in society directly punishment; but far more important, perfrom a knowledge of the real, objective haps, he felt on his back the invisible

needs of those with power — actual and whip of public opinion. Colonial society potential. Every society rests on a set of hoped to reform the sinner by invoking implicit bargains about the legitimate the mockery and scorn of his neighbors. limits of law; in every society a set of Of course, everyone knew that a certain

important attitudes supports these hard core would not respond. These peo-

bargains. ple were, first, clearly labeled as the For every era we want to ask: what damned and then, in the most aggravated forces had power, real and potential; what cases, banished or put to death. Kai Erickwere their interests; and what were their son has pointed out that branding marked

demands? These demands need not be a person ‘‘with the permanent emblem of solely economic in nature. Power is not his station in life.”’ Branding thus made it solely economic. Distinct and important difficult to restore the offender to a norare the demands for the maintenance of mal social role. Only serious offenders,

moral hegemony — demands for a then, or repeaters suffered this penalty.

monopoly of respectability — in short, for The death penalty was infrequently used,

legitimacy. but it was also an instrument of educaWe will analyze, in a much oversimpli- tion. Hanging was as public as whipping. fied scheme, three periods of American The world could observe the wages of sin. history in terms of these simple proposi- The records of Kent County, Delaware,

tions. The three periods are: colonial identified Andrew Mills and Adam

America, the first two-thirds of the nine- Latham as laborers. Colonial society was teenth century, and the period-from about nowhere democratic; indeed, no colonial 1870 to the present. There is nothing neat society even pretended to such an ideal. about these “‘periods.’”’ They do seem, Society was stratified and hierarchical. To

however, to reflect differences in prevail- be sure, compared to England, great

ing frames of mind. numbers of people owned property and, We began with colonial America. We therefore, made use of common-law insticannot sum this period up, of course, in a tutions and the political process. James A. single glib formula. There were more than Henretta, in a study of colonial Boston, a dozen separate ‘‘colonies,’’ and the colo- found 1,036 individuals in 1687 who paid

nial ‘‘era’’ spanned a century and a half. taxes on real estate or on their income But for much of this period the rulers, par- from trade.” The population of Boston was


Notes Toward a History of American Justice

then roughly 6,000. Since children could who is on the bottom. Discipline in Mashardly be expected to own property and sachusetts Bay was not unlike discipline

most wives were effectively outside the among schoolchildren. We note, for

economic system, landowners and trades- example, Lawrence Wylie’s study of a vil-

men Clearly constituted a sizable percent- lage in France where the usual way to age of the people of colonial Boston and punish a school-child was through shame therefore were customers for the tools and — isolating him, and pitting the rest of

techniques of formal law. society against him. Teachers in the vil-

At the bottom of the social pyramid lage consistently used ‘mocking critiwere the landless laborers, indentured cism’’ to bring children into line.

servants, and, in the South, the mass of Sometimes they made a child kneel at the blacks held in slavery. What the records wall, pressing his forehead against it, his make clear is that the weight of colonial hands folded on top of his head. Or they social control bore down most heavily made a child spend recess walking in a upon this underclass. It was not the mer- circle in the schoolground, hands folded chant, landowner, or minister who was on his head, while other children mocked whipped in public, branded, and set in him.® Derision, of course, is a common

the stocks. These were punishments for form of punishment and, in stateless

servants, laborers, and apprentices. The societies, an almost inevitable one.? The people who owned property, the leaders, criminal law of colonial society used a

and their willing followers defined what common technique, then, when it was the correct morality. The criminal invoked public opinion to enforce the

law enforced this code, upholding a moral rules of moral order. These rules were a regime that the upper classes no doubt paramount concern of that small closely considered universal, but that strained the knit community. human nature of their servant. Whatever The civil side of the law in colonial its ethical base, the code had a cold- society also fit the needs and demands of blooded function. It aimed to maintain that particular social order. Colonial juscontrol over a work force on whose labor tice was open and cheap. People did not and obedience the community depended. hesitate to bring disputes to court, even From the standpoint of the twentieth for rather petty claims. In 1639-40, in the century, the law of crime and punishment Pynchon Court Record of Western Massain the American colonies is remarkable chusetts, we read of an ‘“‘action of the Case because of its emphasis on crime against for 3 boards’’;!° and an action of debt for

morality — particularly what we would 2s 6d.1! In these small communities

now Call victimless crimes. But to the col- everyone knew who the judges were and

onists every crime had a victim: society. where they could be found. In colonial In colonial Massachusetts, the man who records we find thousands of small wills blasphemed God, who was idle, who processed, thousands of petty complaints failed to attend church, or who slept with filed, and thousands of local disputes a servant girl was a criminal — and a sin- adjudicated. These show how low the ner. He had to be punished in order to pre- threshold of access to court was, at least in

serve the moral order. The argument that some colonies and in some periods of these acts hurt nobody would have puz- time. In this regard, too, colonial courts zled and annoyed the good citizens of were like the courts of preliterate societies Massachusetts Bay. The moral order was or, in some ways, like the neighborhood society; injury to one was injury to both. courts of Cuba and other socialist counColonial social control was by no means tries.12 In colonial society courts were unique in this regard. Law and order take inexpensive and at everybody’s doorstep. a similar form in small, face-to-face com- No affair was too petty for scrutiny. It was munities which have clear lines of author- a gossipy, ingrown society. People reguity—explicit notions of who is on top and larly brought disputes before the courts.


Lawerence M. Friedman

The courts settled them — admonishing, One is welcome to believe, of course, governing, and teaching. These traits dif- that actual rates of fornication and blasfered, of course, from colony to colony. phemy declined in this country in the They were probably most pronounced in nineteenth century. This may be; but such

the early period and in the theocratic dramatic declines are unlikely. What

Puritan colonies. In these, law was bossy, changed, then, must have been a social parental, and moralistic; but (on the civil factor, which affected the demand for side) it was also cheap and open of access. prosecution of victimless crimes and In the nineteenth century the legal sys- which altered the system of criminal justem changed dramatically. To be sure, tice. The secular, instrumental men of the much of the formal criminal] law was car- nineteenth century were less interested in ried over from colonial days. The statute the moral code as such, so long as infracbooks kept the old moral laws. Fornica- tions wore a low profile. Colonial magistion, adultery, and blasphemy were still trates had wanted to build an ideal, godly crimes after the Revolution, as they had society. But in the nineteenth century been before. But this is only the surface; in wealth and opportunity were recurrent reality, these laws soon fell out of use. themes in the writings (and presumably William E. Nelson studied criminal prose- the thoughts) of the elite and articulate. cutions in seven Massachusetts counties The task of law was to foster what J. Wilbetween 1760 and 1774, the very end of lard Hurst has called ‘‘the release of indi-

, the colonial period. He counted 2,784 vidual creative energy.’ People had

prosecutions; no less than 38 percent of “sighted the promise of a steeply rising these (an astonishing percentage) charged curve of material productivity as the sexual offenses, mostly fornication. dynamic of a new kind of society’’;!” they Another 13 percent, 359 in all, were for had a “‘deep faith in the social benefits to religious offenses — blasphemy, profan- flow from a rapid increase in productivity, and nonattendance at church.!3 These ity.’’18 Consequently, the main emphasis figures confirm that the statutes were part of the law shifted to the encouragement of

of the living law of the colony. But in the economic activity, rather than the

early nineteenth century, without major enforcement of the ideal moral code. change in the statutory base, the rate of In any event the cozy colonial system of

prosecution for these crimes declined social control was no longer possible. almost to nothing. Criminal justice turned Society was larger, more mobile, and tranits attention to crimes against property: to sient; it was busy with commercial affairs;

crimes such as burglary and theft. rapid technological growth brought con-

There is evidence that this lack of inter- stant novelty and complexity. Society was est in crimes against morality was gener- less able to entrust its safety to stigma, ally felt. Francis Laurent carefully sifted shame, and the opinon of neighbors, parthe court records of Chippewa County, ticularly in the industrial North. Hence, Wisconsin. Between 1855 and 1894 he reformers of the nineteenth century no found a total of five cases of incest, nine of longer saw society as cleansing and eduadultery, four of fornication, and one of cating, as a hammer of reform and retribulewd and lascivious behavior — not much tion, or as the teacher and parent of men. of a harvest of sin. 14 Jack Williams studied Rather, as David Rothman has argued, crime and punishment in pre—Civil War they saw society in a much more quesSouth Carolina, hardly a society without tionable role. The peer group was, if anysinners; he found few prosecutions for thing, corrupting. Bad company, idleness, crimes against morality. Indictments for and vice were ever present in society. A bastardy ran to about 2 percent of the rotten environment was ruinous to man. total, but many of them were really cases Everyone was ‘under seige.... Once, of nonsupport. Incest, bigamy, sodomy, observers believed, neighbors had disciand adultery hardly appeared in the court plined neighbors. Now, it seemed that

records.15 , , rowdies corrupted rowdies.’’??


Notes Toward a History of American Justice

This was the age in which a new insti- In its pure state, the silent system

tution, the penitentiary, was devised. In could not and did not last. To keep one it, the deviant would be removed from man to a cell, in solitude, cost a good society to be reshaped in a monastic, pro- deal of money; and the money was simtected environment. Of course, the whip- ply not forthcoming. Penitentiaries grad-

ping post did not vanish overnight. It ually became mere prisons; the solitude continued to be used, particularly in the and silence were surrendered except as a South. Many states, such as South Caro- special punishment for troublemakers.

lina, still hung incorrigibles in public, By the time of the Civil War even the and people flocked on foot, on horseback, famous penitentiaries that had led the sometimes even on special trains, to see way often slept more than one man to a

the spectacle.2° But more and more, cell, and only a handful of wardens still imprisonment became the standard pun- made a serious effort to enforce the regu-

ishment for serious crimes. lations of silence.?4

The old-style jails had been dirty, inse- But the basic idea of the penitentiary

cure, and loosely run. The new prison was flourished. Reformers believed that strict radically different. To work reform, pris- regimens, sermons, piety, loneliness, and

ons had to be redesigned. The two most quiet would regenerate a shattered soul.

famous of the early penitentiaries, The average man probably rejected the

Auburn in New York and Cherry Hill in advanced views of the reformers, while Pennsylvania, were both based on the agreeing that hard work, regimentation, a

principles of solitude and silence. In spartan life, and long sentences were Auburn (1821), the prisoners slept alone appropriate punishments for crime. at night in their cells. During the daytime Criminals were dangerous to society. they worked together in a workshop, but They could not be cured through stigma were not allowed to talk to each other, or and shame. They, therefore, had to be

even to look at their fellow inmates. removed from normal life. Those who

Cherry Hill (1829) tried to achieve even were not to be hung or imprisoned for-

more radical isolation. Prisoners ate, ever would, it was hoped, be cured of worked, and slept in individual cells. their tendencies. If not, the prisoner was Sometimes they wore masks. They lis- at least out of harm’s way. tened to religious services through peep- Victorian society has a reputation for holes. They were utterly silent, utterly prudery and sexual intolerance. Ameri-

alone. can society was as prudish in language The new penology burst like a bomb- and official behavior as the correspondshell in the world of social thought. ing circles in England. Yet, apparently

Foreign visitors, such as Beaumont and nowhere did the law take seriously the

Tocqueville, came to study the peniten- — job of enforcing the sexual code. The law

tiary in its native habitat. On the whole, of divorce also illustrates the complex the two Frenchmen were impressed by its interaction between official morals and rigor, its efficiency.2! Charles Dickens, unofficial behavior. Divorce had always who came a bit later, visited Cherry Hill been difficult to get, rare and expensive. and found it horrible: the prisoners Absolute divorcee was not available at all seemed to him like men who were buried in England except through act of Parliaalive. Isolation, he felt, was a mental tor- ment;25 and in some southern states ture worse than any ‘‘torture of the before the Civil War divorce was equally body.’’?? Apparently few of his peers saw difficult and uncommon.?® Yet in the things his way. Certainly contemporaries North, a group of states had dramatically - endlessly argued the merits of the two relaxed their divorce laws. In Maine, by a systems, which to us today are as alike as law of 1849, any justice of the supreme Tweedledum and Tweedledee. But all judicial court could grant a divorce if he over the country legislatures eagerly felt it was ‘‘reasonable and proper, con-

copied the one or the other.?3 ducive to domestic harmony and peace,


Lawrence M. Friedman

and consistent with the peace and moral- drank and gambled to excess. But they ity of society.’’ Connecticut, too, had an seemed to take care not to sin in such a easy divorce law.2’? The divorce rate was way as to threaten the moral norms pub- — very low by modern standards, but some lically. A society can tolerate a great deal

contemporaries still found it alarming of deviance so long as the deviants do that there should be divorce at all or that not attack the norms themselves, but

divorce rates should rise. remain hidden in the woodwork. When

Divorce, however, unlike adultery or deviants become what Joseph Gusfield blasphemy, could not be allowed to exist has called ‘‘enemy deviants,’’>° that is,

in a kind of moral underworld. There when they attack the norms themselves

was a genuine demand for it for social and try to overthrow them, they represent and economic reasons. For the sake of the a greater (or at any rate a different) legitimacy of children, for security of danger, and those who benefit from the

property rights, for the right to live normative status quo, economically or

legally with a second consort, divorce spiritually, will react repressively. was an absolute necessity. Hence, the One such group of enemy deviants was attack on easy divorce ultimately failed. the body of the Mormon faithful, who But the easy laws were repealed. They insisted on practicing polygamy. Many

were replaced with tougher, more people all over the country were polyga‘moral’ laws — laws with a strong, mists in fact, if not in law. Yet, the Mor-

healthy ethical surface — but the collu- mons were open, defiant polygamists. A

sive divorce and the Nevada divorce crusade against polygamy followed, the mills made the situation one of extreme savagery and shrillness of which can

and blatant hypocrisy.?§ barely be imagined today.

Yet the nineteenth-century seemed to A kind of Victorian hypocrisy also

prefer, even to welcome, this hypocrisy. characterized the whole of the criminal By all accounts, throughout the century, law. On paper every man was entitled to particularly after the first quarter of the elaborate procedural safeguards. He came century, there was a great deal of crime, to trial wearing the armor of the Bill of brawling, drunkenness, gambling, and Rights; he had claims to a fair and speedy general hell-raising, just as one would trial before a jury of his peers and scruexpect from normal human flesh. But a pulous observance of the rules of the rather sharp line was drawn between that game. But during the century, the sheer

which was officially allowed and that volume of trials overwhelmed these which was unofficially tolerated. This is rights. Society became more serious the key, perhaps, to the strange fact about catching and trying thieves and already noted that the state stopped pun- murderers. Instead of amateur, haphazard

ishing fornication and other crimes methods of patrolling cities, after 1830

against morality, but never repealed the many cities turned to full-time profeslaws against these acts. This may be the sional police. The police themselves very heart of Victorian attitudes toward often ignored formal law and fought viomoral behavior. What had to be pre- lence with their own weapons. Masses of served at all costs was the official code of people were arrested and treated routinestrict morality. What went on underneath ly, almost cavalierly, in court. Rights

was deplorable, but inevitable, and in a were never formally relaxed. Upper

curious way almost acceptable. courts zealously combed the records of Evidence of the dark underbelly of Vic- lower courts looking for errors. The state torian life?? throws this hypocrisy into renounced terror and torture as means for high relief. Victorians on both sides of controlling the lower classes. But, as far

the Atlantic published and read dirty as we can tell, the lower courts and the books, cavorted with prostitutes, engaged enforcers, particularly in the cities, in buggery and every form of vice. They ignored many of the formal rights. The


Notes Toward a History of American Justice

population never accepted as an absolute devices. The law of a mass economy good the official legal code. The vigilan- avoids individualization. It reduces

tes in the West, lynch mobs in the South, transactions to the typical, to the routine;

and police brutality in the cities all it slices up some small segment of reality demonstrated over and over that, when and handles it in a standardized way. the chips were down and the situation Behaviors are converted to legally releserious enough, men inside and outside vant forms. A person pays his debts by the system were willing to take the law check — a piece of paper fixed in form

into their hands. , | and in legal meaning. Routinization There was a similar hypocrisy in the makes a good deal of sense. The work of civil part of law. American law affected society could not proceed if judges had the work and welfare of great masses of to stop to examine each little dispute in a

people. In the United States, land law compulsive thoroughgoing way.

was not a remote, aristocratic concern; It is dangerous, of course, to attempt to millions dealt in the market, buying and read the minds of past generations and selling land, moving about, getting and generalize about what “‘society’”’ thought. giving deeds, using mortgages, drawing Yet one senses in the nineteenth century up wills. Many borrowed money, or lent a widely held belief that it would be best it out at interest; it was common to make, if people stayed out of court and tended endorse, or accept bills and notes. Per- to their own affairs. Through law, society haps, compared to old Massachusetts, a established a basic framework, ensuring

rather lower percentage of the people security to property and contract. Inside directly confronted the law. But, if com- this framework people were to do their mercial and land laws did not touch the jobs, getting and spending, making the life and interest of everyone, they did wealth of the country grow. In American affect the life and interest of the vast mid- law and, so far as we can tell, in Western

dle class. law in general, courts gradually withTo accommodate this mob of “con- drew from the basic task of settling

sumers,’’ to release latent economic everyday disputes. One bit of evidence is

energy, to maximize opportunity, society the startling fact, suggested by data from

developed its law in such a way as to a number of countries, that formal litiga-

make transactions both safe and efficient, tion tends not to keep pace with popula-

that is, routine. The documents in use tion growth in the industrial nations. were redesigned to become simple, During an initial period of expansion streamlined, and standard. Deeds shrank (perhaps because of the removal of in size. Businessmen developed form restrictions left over from the medieval contracts to sell goods on the installment past), the caseload rises; but with mature plan. These forms depended, in a way, industrialization, the number of cases per

on the courts. The courts ratified the 1,000 population turns static or even devices that businessmen developed — declines. In England, where judicial stadevices such as conditional sales, gar- tistics after 1850 are relatively good, the

nishments, and chattel mortgages — and number of cases filed in court rose began to process them swiftly and effi- throughout the nineteenth century — ciently. At the same time, society seemed perhaps less, however, than one might to feel that in a market economy the legal expect. In the twentieth century, the system could not both promote efficiency trend reversed itself.33

and do strict, careful justice between In the long run, cost was an important individual parties. Courts turned their monitor of the case loads of the courts. back on what in most societies is their Litigation seems to have become more primary and ordinary function — the set- and more expensive. High costs raise the

tlement of disputes. They abandoned threshold at which it makes sense for a

people to their own institutions and person to funnel disputes into court.

20 | Lawrence M. Friedman

Colonials litigated over pennies. Many know.?° Colonial law had some smattermatters got to court or were appealed that ing of this aspect. The law was technical could appear today, if at all, only in a in detail, but in broad outline it spoke an

small-claims court. , everyday language.?”7 A high degree of

Costs of litigation defy precise mea- technicality will inevitably discourage surement, especially in the past. The litigation. If justice is mysterious, if law largest element, for example, is the law- resembles a lottery, people will be yer’s fee; but this does not show on the unwilling to take a chance even if they face of the record. This fact itself is an feel morally secure in their cause. An interesting historical footnote. American unpredictable outcome is a_ high-cost, courts do not award attorney’s fees to the high-risk result. winner of a lawsuit, as do the English. All these factors create a zone of behav-

The American rule seems to date from ior which one might call a “zone of

around 1850.34 Supposedly, this rule was reciprocal immunity.’38 Landlord and a historical accident, but if so, it was a tenant sign a lease agreement. The tenant suspiciously convenient one. What the promises not to play his radio loudly or rule does, of course, is raise the threshold late at night. The landlord promises to

of suit. Even a winning party loses, keep the outside stairway in repair. Each unless damages cover the attorney’s fee violates a little. Because litigation is

and then some. The natural result of the costly, because there is no neighborhood American rule is to discourage small court, because justice is risky, far off, and

claims and noneconomic causes of action. expensive, each is in a way immune from

Delays and overcrowding also raise the legal attack, at least for these minor price of a lawsuit. Colonial courts did infractions. They must settle the matter their business quickly. They had no back- themselves.

logs. Of course these were not mass On the whole, a system of reciprocal

societies. Great delays occur when judges. immunities may be quite functional in a

and staffs are inundated by great society of our type. We do not want peo-

numbers of cases. This happens in a soci- ple running to court at the drop of a hat.

ety with a huge population. But when But this sort of system produces severe one considers how economical it is to and dangerous side effects. Compared run a system of justice compared to with other societies and other periods,

schools, hospitals, highways, or armies, Western legal systems have removed the one wonders why society was never will- bulk of the population from any voluning to spend a few dollars more in order tary contact with the courts. The system | to expand the system and meet growing of immunities on the whole favored busineeds. One senses a feeling, implicit no ness over private citizens; it was theredoubt, that a logjam in court is not all to fore, itself a device of allocation. The the bad. It discourages litigation. Then, nineteenth century, practically speaking, too, the country has allowed its lawyers denied justice to the poor and the powerto unionize (as it were), raising standards less. Redress of grievances through law and fees; it has refused to subsidize liti- was distinctly abnormal. There may have

gation, and it has made, until recently, been, in absolute terms, a tremendous only feeble attempts to provide cheap volume of litigation. But the man in the

justice for the poor.35 street did not use courts to adjust his Most important of all, perhaps, is the problems or settle his disputes. The

nature of law itself. Legal rules and pro- average man was left alone, separated cedures are impersonal and remote, dryly from whatever wisdom, understanding, technical, forbidding. Law in the urban, and justice may inhere in the formal industrial countries is very different from principles of law. law in small societies; everybody knows Nor was the situation of the lower mida lot of law since it is nothing special to dle class much better. The courts did not


, Notes Toward a History of American Justice and could not reach out for the business life of farms and small towns for the of the common man even if he were an dreary life of factories and slums. New

entrepreneur of sorts. It may be that inventions and techniques made life

courts in urban, market societies simply healthier, but somehow complicated it cannot play the role that a tribal or vil- beyond the grasp of the average man. The lage court plays. American courts, how- frontier passed away. There was no more

ever, never tried, though a certain free land at the end of the rainbow. Never

number of schemes helped patch the sys- mind the question of how real the frontem up, helped mitigate some of the most tier had been, how much of an outlet it

severe defects of justice. was for American energies. It was the Many scholars, looking at the legal sys- symbol of unlimited opportunity, and by

tem in the first part of the nineteenth 1890 to 1900 it was gone. By this time century, have come away impressed with many in the middle class felt that some-

a sense of economic optimism. thing vital had disappeared from Ameri-

Obviously, many things were palpably can life. There was no longer room in the wrong with the country. A gigantic fail- economy for everyone; social life was a ure to solve problems of region and race struggle for survival. What one gained, brought on the great Civil War. Cycles of another lost. The economy could not

boom and bust destroyed thousands of expand forever. The specter of class homes, businesses, farms, and fortunes. struggle hung over the nation. Interest Yet overall, people believed that America groups jockeyed for power and position

was a land of opportunity, that in the more blatantly than before.?° long run economic horizons would con- A certain paranoia set in on the subject stantly expand, that the stock of national of race. This was the period of lynch law

wealth would grow larger and _ larger. and the furor over the so-called yellow Here, then was a second period of Ameri- peril. At one time the country had wel-

can justice — a period of rapid growth in comed immigrants. The country wanted society and rapid change in law. Crimi- settlers and workers. Immigrants would nal justice and civil justice alike ceased create a demand for land and commodito be concerned with the individual as ties; land values would rise and the econsuch. Rather, they became responsive to omy would gain. Of course, people had the socioeconomic needs of the society in mind only a certain kind of immigrant.

(as courts and legislatures interpreted When others took the welcome sign too , these) through routinization of transac- literally, nativist reaction set in. The

tions, on the civil side, and through rou- debates over the Chinese at the California tinization and professionalization of law Convention of 1878-79 make hair-raising

enforcement, the penitentiary system, reading: one speaker denounced the

and the stressing of the protection of Chinese as ‘‘moon-eyed lepers’”’; speaker property rather than morality, on the after speaker expressed fear of cheap coo-

criminal side. lie labor. The Chinese would destroy

The age of optimism did not last for- white civilization and pauperize the peoever. By the end of the nineteenth cen- _ ple of California: “If clover and hay be

tury it seemed to have come to an end, planted upon the same soil, the clover

and a new, third period can be said to will ruin the hay, because clover lives ,

have begun. A sense of crisis, a kind of upon less than the hay; and so it is in this darkening of mood, seemed to seize the struggle between the races. The Mongocountry. Concrete social change underlay lian race will live and run the Caucasian this shift in the climate of opinion. Much race out.’4° John R. Commons felt that of the population lived in big cities, immigrants from northwestern Europe —

which seemed more and more rotten, Germans and Scandinavians — were | filthy, crime ridden, ugly, crowded and from the start the model farmers of corrupt. People deserted the wholesome America; they had qualities of thrift and


Lawrence M. Friedman , self-reliance and pursued intensive agri- nineteenth century, economic interest culture.44 The Jewish immigrant, on the groups multiplied in number. The urge other hand, was ‘‘unfitted for the life of a to organize stemmed, at least in part,

pioneer.’’42 Commons drew a line from the natural feeling that in union between the “thrifty, hard-working and there was additional strength, and intelligent American or Teutonic farmer’’ strength was sorely needed in difficult and the “backward, thriftless and unin- times. The interest groups fought each

telligent races’, who worked best “in other in the marketplace and occasion-

gangs in large estates’’.43 “Races wholly ally on the streets, but primarily in the

incompetent as pioneers and indepen- halls of the legislatures. Unions, for

dent proprietors are able to find a place example, wanted legitimacy for their tac-

when once manufactures, mines and tics, and when those tactics failed, they railroads have sprung into being, with wanted to win through law what they their captains of industry to guide and could not gain through bargaining and supervise their semi-intelligent work.’’44 fighting with management.

Attitudes such as these helped mold a This was only one instance of the use body of immigration law that became of law to achieve organizational aims. more and more restrictive and complex. Occupational licensing was another. DocThe first step was to exclude the Chinese. tors, lawyers, barbers, plumbers, nurses,

Ultimately, the federal government put and accountants lobbied for licensing sharp limits on entry and adopted a laws. Licensing was a way to give control quota system in 1924. The quotas discri- of a trade group to itself, along with the minated, of course, against the ‘‘incom- power to keep out the marginals and sup-

petent races.’’45 port the prices and prestige of the

It is particularly interesting to note in members. A whole array of occupations, the history of immigration law how fear ministering to human wants from cradle of the effect of immigrants on the econ- to grave (from midwives to morticians

omy is mingled with moral or cultural and embalmers) asked for and got the horror. Both motives were behind the right to be licensed. Even coal miners movement to exclude the less-favored were briefly licensed in Illinois.48 The immigrants. Perhaps the economic mood form was novel, the concept was not. In caused the moral mood; perhaps the lines general, workers joined unions, farmers of causality ran the other way around. At joined farm organizations, businesses

any rate, by the turn of the century mil- belonged to trade associations and lions were displeased with the national formed combines. The middle-class prospects. Industrialism was a monster trades licensed themselves.‘

that had run amuck. The mobs of Along with the economic struggle

“incompetent races’ who flooded the raged a fight for normative domination. country only stimulated the growth of The Victorian solution slowly broke

this monster and, in the process, drove down. Deviant minorities burst into pubdown the wage rate. Tremendous indus- lic view, bringing uneasiness and pain to trial combines were forming. Small busi- the moral majorities. The process was,

nessmen, farmers, and merchants and is, slow and complex. Frequently,

trembled in fear of their power. Today the moral majorities fought back. When fear of the ‘‘trusts’’ seems as overwrought deviants openly defied them, they had no

as fear of Chinese workers. But in the choice but to repress — or else surrender days of the Sherman Act, passed in their claims to moral superiority. Conse1890,*° the fears were certainly real and quently, after a long period of relative

in deadly earnest.47 | quiet, a number of dead moral laws

Naturally each major concern bred a seemed to spring back to life, and new mass of new law. In the struggle for exis- laws on similar subjects were passed. tence, the power of the state was one of Sometimes the motives seemed mainly the most useful of weapons. In the late economic. Toward the end of the cen-


Notes Toward a History of American Justice

tury, the Sunday laws were the focus of 1900 ‘‘anyone could go to his corner enforcement campaigns in many cities. druggist and buy grams of morphine or Labor strongly supported these laws. heroin for just a few pennies. There was They wanted to win a shorter work week no need to have a prescription ... No for their members, and Sunday laws were moral stigma attached to such narcotics a useful means to that end.>° But minis- _use.’”’5”7 Within twenty years, the law

ters and preachers were their willing savagely proscribed the addict, who was accomplices; labor and religion formed now labeled a dope fiend; severe federal an odd but understandable coalition. and state sanctions were imposed, and Arguably, Sunday laws were all show the country embarked on the dubious and hypocrisy — economic laws mas- adventure of trying to stamp out drug use querading as moral legislation. But prob- through repressive measures. Finally, in

ably the moral disguise which the 1910, another nightmare or fantasy of a economic motives wore was not wholly — beleagured moral majority gave rise to

lacking in meaning. If the concept of a the Mann Act, which outlawed ‘white Sunday full of harmony and rest had had _ slavery.’’58

no power of persuasion, the unions could We are paying a heavy price for some not have put together a coalition with the of these nightmares. Arguably prohibit-

religious. ion created a generation of lawbreakers,

Many other signs of a resurgent moral unwittingly vested immense power in militancy appeared at the end of the — gangsters, corrupted officials, and disnineteenth century. The federal govern- torted the administration of justice.>° ment crushed interstate traffic in lotteries | Similar charges are leveled at the modern

in 1895.51 The temperance movement enforcement of drug laws.

became stronger and ultimately achieved More hopeful and productive was a disastrous success. Joseph Gusfield, for | another breach of the Victorian compro-

one, interprets the temperance struggle mise. This was the revolt of the underas a struggle for normative dominance, a dogs themselves — the refusal of the struggle to show the “‘superior power and downtrodden to accept their labels. It prestige of the old middle class in Ameri- included the insistence of moral minorican society.’’52 In the early twentieth cen- __ ties on the right to their own view of life,

tury, some states even tried to ban the _ not secretly, but de jure, right up front.

cigarette. One of these states was This revolution is quite recent. It has

Arkansas, which in 1907 made it acrime 7 been influenced strongly by the example to make, sell, or give away cigarettes or of the civil rights movement, which is in

cigarette papers to anyone, child or one sense as old as slavery, but in

adult.53 In the same year, Arkansas prohi- another sense distinctly a product of the bited betting on horse racess* and passed twentieth century. Some might think that

a law against malicious disturbance of | to put under one roof the civil rights church congregations by ‘‘profanely | movement and the revolt against moral swearing, or using indecent gestures,’ taboos (obscenity, blasphemy, and non-

violence, or any ‘‘language”’ or act which _ biblical behavior in bed) trivializes the would ‘‘disquiet, insult or interrupt said struggle for racial equality. But this much

congregation.”>5 This period, too, had is held in common: unwillingness to the honor of ushering in a crusade abide by Victorian arrangements. These against drugs and addiction. Arthur | were arrangements made with the expecConan Doyle described how Sherlock _ tation that the lower orders — “lower” in

Holmes, as one author has put it, — the social, economic, and also the moral “relaxed at the Baker Street flat after his . sense — would more or less stay in their

bouts with Professor Moriarty by sum- place.

moning Dr. Watson to prepare him a nee- Numerous devices fastened down the dle.’’5* There was little or no opprobrium ‘Victorian arrangements, and convenient attached. Troy Duster has written that in ideologies and myths buttressed them. It

24 Lawrence M. Friedman

is not the purpose of this paper to exam- euphemism. Nudity on the stage or in ine this subject in detail. However, some live sex shows was out of the question. of the myths of ideologies might be men- There was no demand for these entertaintioned. One was equality before the law. ments, no test cases; the idea was simply Obviously inequality, not to mention cur- unthinkable. The United States Supreme ruption, was rife, but a system of beliefs Court did not decide an obscenity case justified or excused inequalities. Among until after the Second World War.®° This

these was the belief that the United first case dealth with Edmund Wilson’s States was a country of great social novel, Memoirs of Hecate County. The

mobility. Most influential was the notion Court divided equally. Not even a Bible-

that nothing much could be done to Belt schoolmarm would blink at the book redistribute power and wealth without today, with the Kama-Sutra and Lady ruining the country — that is, nothing Chatterley in every drug store, to menwhich was radical or required active state tion only the mildest examples. Since action. Economists and their popular 1948 the law has amazingly expanded spokesmen told the country that only the public zone of sexual expression — disaster could result from interference what can be said, seen, touched, felt, and with natural laws. No one believed this done in the open. Whether there is a simentirely, but enough people believed it ilar explosion of sexual behavior is much |

, enough to keep the country politically less clear. No doubt behavior has calm — at least for a while. But faith in changed and will change further, but the the invisible hand lasted only as long as initial and more dramatic change is in the optimism of the formative period. the balance between licit and _ illicit,

When the hand dealt bad cards, the between what is flaunted and what is

players began to cheat. This ushered in hidden. Indeed, one of the best examples

the age of the pressure groups. , of the new permissiveness is John CleWhatever the causes, twentieth-centruy land’s book, Memoirs of a Lady of Plea-

man seems less inclined to accept the sure, commonly called Fanny Hill, social order as a given and his place written in the late eighteenth century but within it as fixed. He demands for him- safely underground until about ten years self, his interests, and his aspirations, ago. The question whether Fanny Hill is

recognition and legitimacy, as well as obscene has been adjudicated by the

practical achievement. There is, conse- United States Supreme Court itself;®? it quently, a massive demand to close the goes without saying that never before in gap between the official surface of the its two hundred years would this book

, law and the reality. Already in the late have dared show its face in public. Yet a

nineteenth century, devices to improve market for pornography existed in 1800, the administration of justice and access 1850, and 1900. There were people who to the law had developed; the pace of wanted to read Fanny Hill and who were these changes quickened in the twentieth willing to pay for a copy. What was lack-

| century. | | , ing was an appreciable demand on the The law of obscenity provides us an law to legitimate that market. People excellent example. Pornography itself | were content to remain underground in was centuries old. The First Amendment their lechery, or were resigned to that to the Constitution — and a rather strong fate. There were deviants, but not enemy

national tradition — protects freedom of deviants. ,

speech. Yet no one in the nineteenth cen- What does this history suggest? Law, tury imagined for a moment that “free — we have said, is a kind of map of inter-

speech’’ included hard-core porno- ests and demands. Its structure and sub-

graphy. Pictures and descriptions of sex stance betray current conceptions of law

were taboo, except for medical and and current concepts of the legitimate scientfic purposes, or behind a screen of _ limits of law. Law reflects the agenda of


Notes Toward a History of American Justice

controversy — the things that are in interdependent and within striking dis-

actual dispute. It also gives strong nega- tance of one another. This is the condi-

tive evidence about which issues are not tion of a mass society, with mass in dispute, the things that nobody ques- mobility, and in which slums gird the tions. The issues in dispute are demands core of the city. The ‘‘dangerous

and counterdemands. When we speak of classes’’®3 once lived in tight districts, a crisis in law, civil or criminal, we mean out of sight and almost out of mind. Now a crisis in demands. Clearly in the third no place is safe. The paths of those who and present period, which began roughly live in the slums cross the paths of the a century ago, two distinct pressures on ~ rich on their way to work, theaters, reslaw have produced such a “‘crisis.”’ First, taurants, and banks.®

the oppressed and the deviant have Much violence in the past took place

demanded legitimization; second, coun- outside the cities. In a raw frontier comterpressure has developed from the old munity a Dodge City let us say, grown majorities whose moral and economic men committed violent crimes — many

dominance has been threatened. of them on other grown men. What horri-

The current agitation about law and fies people today is violence committed order — crime in the streets — is a meet- on the helpless and the innocent. When

ing ground or battlefield of these two an addict murders an eighty-year-old

armies, pushing against the legal struc- widow, the statistic is the same as when

ture from opposite sides. Most people one gunfighter shoots down another. assume that crime is rampant in the Socially, however, the two crimes are cities; a walk in the streets after dark is quite different. In one case victim and

perilous. Also widespread is the idea that killer stand on an equal footing. Both life in the cities is rotten and corrupt and entered a violent world more or less of getting worse. This, of course, is not a their own free will. In the other case, the new idea. The bad reputation of the cities relationship is involuntary — a relationis centuries old. But there seems to be an ship of predator and prey. increase now, a stridency in the fears and Even so, the crisis in law is a crisis of demands of broad masses of people. demand. Whether or not conditions have

Yet in the face of this clamor some gotten worse in the outside world, the scholars flatly proclaim that the crime tolerance level has certainly declined

wave is a myth. Over the long haul, they and, correlatively, the level of demand

say, violent crime has, if anything, that something be done has risen. The declined in the cities.©2 Urban crime may demand for an attack on crime is a have jumped, but only in the last few demand for sterner police measures, years, and even that is disputed. New tougher prisons, less ‘‘permissiveness.”’ It York and other big cities, it is argued, is tied — not logically but emotionally — were hotbeds of crime in 1870 to a much to fear and hatred of the moral minorities

greater extent than they are today. and of the unruly and political factions of If so, then what is the crisis in crime? the underprivileged. The demands of First of all, it is possible that something these people have brought about great

real has happened to the crime rate. Peo- improvements in access to law and in the

ple care less about raw numbers of administration of justice. Demand now

crimes than about the kinds of crime, meets counterdemand of equal or almost who commits what acts, in what places, equal strength. There is no obvious short-

how, and to whom. It is one thing for run solution to the clash of these sets of crime to run rampant where the middle demands. class never penetrates, in places it cares The third period, then — our period — nothing about; but it is quite another is a period of conflict and struggle in the thing for those same crimes to be com- two specific areas we have stressed. mitted in a city in which everyone is There has always been conflict and strug-

26 ,

Lawrence M. Friedman

gle, but the current forms seem particu- promises and accommodations have lost larly nasty and sharp. This is because the much of their strength. Opposing forces moral world appears to have lost some of are struggling, not only for power, but its classical shock absorbers. The unsha- also for legitimacy; and legitimacy is not keable faith of the colonial elites is gone. easy to share. No doubt there will be new The nineteenth century was fortified by | accommodations and new compromises;

faith in economic growth and a basic but their shapes and sizes, at least for stock of moral principles. Now old com- now, are not visible to the naked eye.

Part Two

Studies in Colonial Law

There is a relatively rich literature on the thing real (American legal practices) with law of the colonial period, thanks in part something abstract (a stiff, static concepto the large body of records that have sur- tion of the common law as the “King’s vived. The legal and social tradition the Law,” derived exclusively from the rul-

colonists brought with them from Eng- ings of the royal central courts). The

land was tested and modified in the New source of American law, Goebel argued, World in ways that provide for scholars was not the lawyer’s law of the London evidence of what amounted to a social courts; it was local legal custom. The legal

experiment on the interactions of law, institutions of Plymouth were not dupligeography, and culture. Out of the many cations of a specific model, but ‘‘crude studies on colonial law that have resulted, imitation(s) of inaccurately remembered we have selected three: the first explores things.”’ The ‘‘things’’ inaccurately the social and intellectual roots of the law remembered were institutions of local of the colonies; the second deals with the law. Religion, too, had a significant influinfluence and spread of colonial! law; and ence on colonial practice; the colonists, in

the third looks in detail at a particular Goebel’s nice phrase, had two dominant controversy in the eighteenth century that identities: they were at the same time concealed a struggle for power and con- “English commoners and religious

trol under its legal trappings. zealots.”’

The article by the late Julius Goebel, George Haskins picks up the Plymouth

“King’s Law and Local Custom in Seven- colony where Goebel leaves off. Goebel

teenth-Century New England,” examines traces, for example, the roots of the the law in the tiny colony founded at Ply- impulse to codify the law that was so mouth. When Goebel wrote, many Ameri- striking a feature of legal life in Plymouth;

can legal historians were still debating Haskins tells how the Plymouth codes whether the common law had been influenced law and legal institutions in “received” in the colonies — that is, other colonies as well. The law of Plywhether it did or did not prevail during mouth mirrored the life of the commuthe colonial period. Goebel reminded nity, its needs and habits; as a result, it

scholars that they were comparing some- also sheds much light on the ‘‘problem of 27


Studies in Colonial Law

cultural transplantation.”’ But the number colonial; Flaherty draws in data from the of legal innovations that can be traced to southern and middle colonies as well as

this tiny colony is truly remarkable. , from New England. How crime, morals,

Stanley Katz’s essay on the chancery and law interrelate is a recurrent theme in courts focuses on legal life in the eight- American legal historiography and is also eenth century, a period which has been — explored elsewhere in this book in essays sorely neglected except insofar as its | by Friedman and William Nelson. movements and events can be treated as leading to the Revolution. His essay is a model of careful exploration of sources. Further Reading

, The English courts of chancery were not easily transferred to this side of the Atlan- Flaherty, David H., ed., Essays in the Histic: Massachusetts and Pennsylvania tory of Early American Law. Chapel Hill: rejected them outright; elsewhere, they University of North Carolina Press, 1969.

were the subject of controversy. Katz Goebel, Julius, Jr., and T. Raymond

finds, however, that criticism of chancery Naughton. Law Enforcement in Colonial did not relate to its work with ‘‘mundane New York: A Study in Criminal Procedure private law,” but rather to the political (1664-1776). New York: The Commonwealth implications of control of chancery under Fund, 1944.

colonial conditions. His essay helps us Greenberg, Douglas. Crime and Law

understand how this much attacked insti- Enforcement in the Colony of New York,

tution survived independence so well; it — 1691-1776. Ithaca: Cornell University Press,

is an important study of the relationship 1976.

of legal structures to society. Haskins, George L. Law and Authority in

This relationship is also the theme of Early Massachusetts: A Study in Tradition

David Flaherty’s essay on the enforcement and Design. New York: Macmillian, 1960.

, of morals in the colonial period. The Puri- Morris, Richard B. Studies in the History tanism of the New England colonies has —_ of American Law, with Special Reference to

been the subject of furious discussion; the 17th and 18th Centuries. 2d. ed. Philathis essay documents the ways in which delphia: J.M. Mitchell Co., 1959.

theories of the good and godly society Smith, Joseph H., ed. Colonial Justice in

were translated into concrete legal mani- _ Western Massachusetts, 1639-1702: The festations. The essay is particularly useful Pynchon Court Record. Cambridge, Mass:.: in showing that the movement was pan- Harvard University Press, 1961.

Julius Goebel, Jr. | | | King’s Law and Local Custom in Seventeenth-Century New England

The first century and three-quarters of which we may not unjustly blame the low American legal development is bounded estate of colonial legal history, lies the falby two landmarks which have served as lacy that the sum of the law of England monuments to those historians who have was the law of the king’s courts — the attempted to survey the field of colonial common law.

law. The first of these is the royal charter; So accustomed are we to focus our

the second is the so-called reception stat- attention upon the expansion of the king’s ute. The former, with its mandate that the law that we have closed our eyes to the law in the lands granted should be agree- fact that at the outset of the seventeenth

able or not repugnant to the law of Eng- century local custom and local courts land, is commonly regarded as a forecast were still immensely important parts of of what was to transpire. The latter — the law administration in England. True, with its declaration that the common law these local institutions were marked for

of England, insofar as it had been adopted eventual doom, but they had resisted over at a particular date, was the law of a state centuries successive assaults by quo war— is held to have marked the consumma- ranto; they were yet a part of the fabric of tion of the forecast. With these landmarks law and government. No one who ven-

before them and acting upon an assump- tures into the forbidding welter of contion that I think wholly unwarranted, our temporary charters can fail to be appalled historians have taken as a measure the by the multitude and extent of franchises, common law of England: Coke for the out- the tenacity with which they were clung set, Hale for the turn of the century, and to, and the astounding picture of jurisdic-

Blackstone for the latter years of colonial tional diversities they disclose. This, America. A technique has been estab- then, is the fact to which we must cleave: lished no more recondite than the process the law of England was something greater of matching colors by which Chief Judge and more multiform than that of the

Cardozo has so bitingly characterized the courts at Westminster. ,

inept use of precedents. At the basis of It is not necessary to enter upon a disthis naive and uninspired method, for cussion of whether or not the provisions

| in the first colonial charters had reference

Reprinted, with footnotes abridged and minor edito- to the statutes and the common law alone, rial changes from Columbia Law Review, 31 (1931), or whether they contemplated including

416-448, by permission. _ that part of the law of England with which

29 ,


Julius Goebel, Jr.

the courts at Westminster rarely occupied There is very little evidence that the bulk themselves. In the last analysis the charter of the settlers had any intellectual con-

provisions are significant only as to the tacts beyond those which their religion

relations of a particular colony with the had given them. In other words, with the

homeland! and cannot be regarded as exception of a few leaders it seems

constituting a reliable guide to what in unlikely that the colonists were aware of

fact transpired in America. While in thus any of the literary movements of the time, casting away the charter it would appear of the law, or even of the politics of the

that we had abandoned the last beacon by royal court. Most of them were small which to lay our course, we nevertheless farmers or artisans. Their leaders were retain one important light — that the colo- exiles because of their beliefs. They were nist will avail himself of his cultural heri- in respect of law and government foottage whether this has to do with religion, loose, maintaining with the homeland no with law, or with methods of farming. In more than a commercial relation with the accepting as valid this premise we must, group which financed them. Among their of course, rely upon work that has been number were none who had been initiated done by lay historians in fields other than into the mysteries fostered by the Inns of the law, but I see no good reason for tra- Court. To suppose that they would introversing their conclusions. At the same duce a system as complex and esoteric as

time it should be noted that the accep- that which prevailed in the king’s courts tance of this premise necessarily involves is as absurd as to expect that they would the rejection of what I have already establish a religious system on the princidescribed as the technique employed in ples of the Anglican Church. Unless we

existing studies in American law. Instead are willing to resort to the frontier theory of comparing the English common law (that pons asinorum of American historiowith the legal monuments in the colonies, graphy) * we can make but one assumpour task now becomes more complex. It is tion: for the purpose of civil order in the

necessary for us to determine what was colony, resort was had to the law with

the cultural heritage of the first settlers, which the colonists had grown up.

and in what form this heritage first It was inevitable that the local courts expressed itself in the new land. and the customary law would assume a It is my purpose to single out for study position of transcendent importance in

one colony, not only because it was the the life of the ordinary man. It was to first important English settlement north of these courts that the farmer or artisan

the fortieth parallel, but because the would turn if he wished to replevy his

achievements of this colony were imitated cows or to collect a bill, and that turned by succeeding groups which settled in upon him if his hogs were unringed or if New England.? This is the colony at Ply- he put his garbage in the street. Except mouth, whose legal history over a period what these humble men may have known

of three decades we shall examine. of the ecclesiastical courts, with their

sompnours spying upon their amours, If we regard the personnel of this first | and the apparitors to take them to jail if settlement, the picture presented to us they worshiped heretically, the workings seems relatively simple. The group was of the county, manorial, or borough tribudivided into two parts: those persons who nals were the length and breadth of their were Separatists from the English Church, knowledge of the administration of jusa large number of whom had settled at _ tice, the local customs the sum of their

Leyden, but many of whom came directly law. Since it was men from these walks of from England to America; and a number _slife by which the Plymouth Colony was

of persons who appeared to have had no established, we must seek the secular

religious connection with the Separatists, | source from which their legislative inspibut who, probably for economic reasons, ration flowed in the local institutions of

desired to move to the new settlement. their native land. Historians have not


King’s Law and Local Custom

failed to observe that in respect to the the exaltation of the Mosiac law, the

machinery of government the local insti- embracing of Calvin’s conception of the tution was that which was first duplicated law of nature, and particularly a quickenin America. Only a profound and abysmal ing of social-ethical ideals. These things disregard for the character of English law become articulate not merely in religious

in the seventeenth century could have issues, dogmatic and disciplinary, but in made them blind to the fact that in respect definite ideas for law reform among the

to the law conditions were no different. radical dissenting groups in England. The premise that colonists recruited They are the inspiration for the demands

from the lower strata of English society that the law of Moses be a part of the law would put into action overseas the aspects of the land, for the violence with which

of law and law administration which the church jurisdiction over morality is formed a part of their experience attacked, and for the assaults upon oaths extended further than to the point of mere of purgation. In America we shall observe duplication. Much that was familiar to the their florescence in many details. settlers in New England was distasteful to In outlining the extent to which the law them. Some things they objected to on the was swept into the purification activities grounds of economic expediency. Some of English dissentients, it has not been my

things were despised because they ran intention to imply that here were objec-

counter to their religious beliefs. For these tives consciously before the emigrants, or they had definite notions of reform long that anything as pretentious as a program before the idea of emigration had been existed. Their ideas mark at best the limits ventilated. The adoption of English local of what we might expect would emerge in

customs in America is to be studied con- their legislation as a result of religious

sequently in the light of these idealism. Moreover, these notions would

reservations. normally be slow in finding expression. The intellectual background of the Ply- Foremost in the settlers’ minds was their mouth men, as I have stated, was deter- primary purpose of propagating the gosmined largely by their intense concern pel of the Kingdom of Christ. Except as with religion. The basis of their ideas is to practical necessity or unplanned action some extent to be found in the theological intervened, legal institutions and organiliterature of the reformed religion, trans- zations were necessarily ancillary to this. mitted to them directly or through the

medium of their teachers. In addition to I think the growth of the law in Ply-

these sources we must likewise take into mouth can be best understood if we keep account what may be termed the popular before us the fact that here was a group

literature of the dissentients, the vast settling on lands to which they had iniflood of pamphlets, many of them openly tially no grant and no governmental polemic, by which the anti-Anglican powers derived from or authorized by the movement gained headway among the crown.* Whatever legislative powers commoners. It is in this type of writing were assumed depended therefore upon

that we find the abstractions of Calvin’s some view of the inherent capacity of the Institutes of Christian Religion translated group. A necessary consequence of the in terms of English institutions. Here, if Separatists’ ideas of church forming was anywhere, will be the rudimentary pro- that a certain corporate quality attached gram of law reform leveled at local condi- to the congregation formed by covenant.‘ tions. Here are the roots of those elements The free use by Separatist writers from in the laws of the early New England colo- Browne to Robinson of analogies drawn nists that we may describe as the results of from English borough constitutions, to

idealism. fortify their conception of the corporate

For our purpose we must direct atten- nature of their church, lends color to this tion to certain manifestations of Calvin- theory. Thus, we know that before the ism such as the growth of biblicism and Pilgrims left Holland, they formed by


Julius Goebel, Jr.

covenant a church, and that their pastor a particularistic conception of law and conceived this to have been simultan- government utterly opposed to the ceneously equivalent to the formation of a tralizing tendencies of the king’s courts. “civil body politick.”’ This would doubt- Insofar as codes had survived in sevenless have been sufficient to their needs teenth-century England, they were the

except for the presence of persons not vestiges of medieval conditions, the

members of the church. The Mayflower depositories of ancient law.

Compact was executed, as Bradford I have already made reference to the

states, to keep these non-Separatists in diversity of franchises in England at the order. Since the power to legislate was opening of the seventeenth century. The the consequence of corporate character existence of these franchises, many of implicit in the Separatist or Congrega- them dating back to the Norman Con-

tional Church, the compact was no more quest, had favored the development of than a reiteration and confirmation of local law and customs. The latter were this corporate association, plus an not universally reduced to record, but as announcement of a design to ‘enact and a rule the more important the jurisdic-

frame just and equal laws.’’® tion, the more surely were its local cusIt is obvious that a group which toms committed to writing. These

believed it could create corporate capac- custumals varied from the relatively comity on the civil side by complying with plete statements of local law, arranged in

its own formalities of ecclesiastical asso- an approximately systematic way and ciation, and which looked primarily to fully deserving the name of codes, to the the Bible for substantive norms of con- more primitive recordings of manorial duct, was in no immediate need of com- ordinances. In all cases the active princi-

prehensive legislation. This indeed ple behind the reduction to writing was

seems to be borne out by the records. Not the desire to achieve certainty, to preuntil 1636 was there an attempt at a far- serve the franchise, and to aid the local reaching establishment of laws. That year courts which enforced the custom. These

was signaled by the establishment of a codes existed as living law, despite the code intended to be a complete statement fact that they belonged to the past and of law. Since this code was the first of a not to the future. So widely diffused were series of similar codes in New England they that it is difficult to avoid the conand as I am of the opinion that the subse- _—_ clusion that they exercised some influ-

quent codifications in those regions were ence upon the Plymouth planters in their

all of them influenced by this first choice of a code as a medium of expressattempt at a concise and compact state- ing their will. This was due in part to

ment of the law, it is necessary to inquire undoubted familiarity with local condi-

why such a code should have been tions and in part to the fact that the

enacted. intense biblicism of the past century had

Nowhere do the religious and given to the code idea a new vigor. ,

experiential elements in the legal devel- We have seen how the so-called

opment of Plymouth merge more closely Mosaic law had been seized upon and than in relation to the colonists’ idea as exploited by the radical religious ele-

to the form in which law was to be ments in England as the true guide of

expressed, in their seemingly unprece- men’s ethical behavior. There can be no _ dented enthusiasm for the lex scripta, for doubt that the great things which had

codification. This notion was by no been accomplished at Geneva, suppo-

means new to English law, but codifica- sedly on the basis of Old Testament juris-

tion was not an idea favored by the com- prudence, had stimulated this mon lawyers. The code idea as it had enthusiasm. For it was a cardinal point of

taken form in England was expressive of Calvin’s propaganda that God’s Kingdom


King’s Law and Local Custom

could be realized on earth only by the men are prone to remember how things adaptation of Israelite models. There was begin, be they constitutions or laws or but one law in the Kingdom and that was poems, however far they may stray from the law of God as revealed in the Old their models before they are through. Testament.

In addition to this more articulate I have tried to make clear my view that

aspect of biblicism a major characteristic in the growth of legal institutions at Ply-

was the insistence upon a literal use of mouth we are dealing not with an exact the Book and an irrefragable confidence duplication of a definite model, but with

in the written word. It is here that we the crude imitation of inaccurately

shall find at least a partial explanation of remembered things. This explains the the desire strikingly manifested through- use of the code form. It likewise explains out New England to have the rule of law certain aspects of law administration to reduced to written form, the absence of which I desire briefly to advert. Thus the

judicial interpretation, the requirements absence of clear-cut lines between the

for recordation of titles, and the preserva- legislative and judicial function,® and the

tion in writing of evidence. In England failure to distinguish entirely between

we see how this tendency had already civil and criminal? jurisdiction are

been expressed in the Puritans’ demands characteristics of Plymouth and of the for explicit church canons that would country courts in England. No one who leave no doubt as to what the law was. In has read the records of the local courts of the later days it is exemplified in the seventeenth-century England can fail to

vicious attacks upon the amorphous be stuck with the remarkable resem-

nature of equity jurisprudence. In Massa- blance between the two. The eventual chusetts Bay the prevalence of this point abandonment of what appears to have of view even operated to defeat the pur- been an initial imitation in Plymouth of pose of the projectors of theocracy to suit of court with judgment by the suithave the law a growth of custom along ors, in favor of an elected and representabiblical lines, so that the charter’s injunc- tive magistracy, tended to emphasize tion that their law be ‘“‘not contrarie or what I call the essentially leet court charrepugnant” to the law of England could acter of jurisdiction. Similarly the earliest

be avoided. Plymouth statute of 1623 required a jury It is net to be expected that the result trial in all civil actions, including debt. of this curious union of religious objec- This was a characteristic of the undif-

tives and lay experience would resemble ferentiated manor courts, where civil and except vaguely the English prototypes, police jurisdictions were intermingled. In

particularly as these draftsmen had county courts and local courts exercising before them no copy of any local custu- untarnished civil jurisdiction, wager of mals. On the other hand, I find persua- law was prevalent. The Plymouth statute, sive of my theory, that English custumals a reflection of the dissentients’ antipathy

motivated the use of a code, the fact that to purgation, tended to fix procedure the commencement of the Plymouth code along the indicated lines. | resembles generally many of the English For our guides to pleading in English

custumals.” It opens with a recital of local courts we are cast upon seven-

authority and a specification of powers. teenth-century handbooks like those of Then follow sections relating to the elec- Dalton, Kitchin, or Greenwood. Except tion of officers and the oaths to be taken perhaps in the county court no such uniby them. Precisely the same arrangement formity existed, as these writers would was followed in the beginning of a great have us believe. We do know, however, many English custumals. This presents that the primitive methods of complaint — , itself as evidence worth considering, for and answer were usual, and this seems to

(34 ,

Julius Goebel, Jr.

have obtained in the earlier decades of thoroughly Calvinistic and entirely in Plymouth history. On the other hand, line with the Puritans’ notion of wide until 1636 there was in that colony no judicial discretion in penal matters.

clear conception of forms of action, at Genevan rather than English the Plyleast if we may judge from the fact that mouth criminal law indeed was, but only twice in the records does the clerk nonetheless it was enforced by very append a name to the action. Thereafter, English machinery — a strange hybrid

however, we find designation to be compounded of leet and quarter-session usual, a fact which leads me to think that practice. Jury trial in all criminal causes

a book like Kitchin’s Jurisdictions of was provided,’ but this was not signifiCourts Leet may have reached these cant, since the magistrate was given vir- shores. There is, moreover, a remarkable tually an ordinance power in respect to

preponderance of actions on the case, a specifying misdemeanors.1! The indicacharacteristic of all early American pro- tions in the records are that a petty jury cedure in the North. For this phenome- was drawn as a matter of course only in non no satisfactory explanation has ever case of a major crime. Where an offender been offered, but I venture to suggest that was presented, the court apparently proit was a contemporaneous condition in ceeded to sentence without further trial,

England. In the king’s courts, case had the findings of the grand jury being been on the rise. The indications are that deemed sufficient inquest.!2 In the the same thing was true in the local English leets unanimous presentment courts. Perhaps the emasculated action of except in cases where the freehold was trespass in the county courts — the tres- involved operated as a conviction, and pass without allegation of force — may this may have been the source of Plyhave had something to do with this. The mouth practice. Occasionally the accused formal distinctions between trespass and as well as witnesses were examined in case were here totally lacking. The sub- open court, but apparently a jury was stantive characteristics which the form of impaneled for small offenses only if the

the writ imparted to the two actions presentment was formally traversed. being absent, one naturally wonders Since the bulk of offenses — drunkenwhether or not, within the scope of the ness, sexual transgressions, and uncivil county court’s jurisdiction, the form of carriage — far outnumbered more serious

action had any significance. Until more infractions of public order, this quasiis known of the English county court we summary method of procedure was workshall not have an answer, but the early able, and having religious and customary American records are highly suggestive. precedents behind it, was not regarded as subversive of individual rights. 13

Before we turn to criminal procedure it It is not alone in the field of law

is necessary that the substantive law be administration that the experience of the briefly characterized. It mirrors in the planters at home is perceptible, but in the first instance the colonists’ biblicism and problem most vital to their existence — the enormous concern of the English dis- the land. Here the custom of England sentients with morality. The robber is not held only bitter memories, and here we mentioned, but the fornicator was left shall find attempts to right those things few loopholes. The expression ‘‘felony”’ for which at home there had been no

used occasionally in the court records remedies. does not appear in the statutes, but “‘mis- The Pilgrims generally came from demeanor,” at that time not yet estab- those regions of England where the lished as a word of classification in the effects of the agrarian revolution of the common law, is used to describe conduct sixteenth century had been most pro-

the criminal character of which the mag- foundly experienced. The bulk of the ten-

istrate was to determine. This was ancies in northern and eastern England


King’s Law and Local Custom

were copyholds, and upon these had sion with the adventurers who financed descended the full brunt of the move- them over the problem of landholding. ment for enclosure. The copyholders, as The latter demanded that all lands be tenants at will by copy of court roll held in common, to be divided at the end according to the custom of the manor, of seven years. They wanted security. were roughly divisible into two groups: The planters wanted homes of their own those who held copies of the roll estab- that could not be taken away at the end

lishing their tenancy, and those who of a term. Since no agreement was

relied upon oral proof of the custom. reached before departure, the first diviTheir remedy against landlord encroach- sion of land was made without reference

ment lay in the first instance in the to the adventurers’ demands. Corn grow-

manor court, but as enclosure was ing was undertaken in common on the usually begun by the lord, this was an open-field cultivation system, but this

illusory protection. Chancery had first was not successful. In 1623 the governor taken the copyholder under its wing. assigned to each family land in proporLate in Edward IV’s reign King’s Bench tion to its members (from one to ten had intimated he would have an action acres) for purposes of tillage, a portion of on the case against the evicting landlord, the produce to be deposited in the com-

and finally, upon the accession of the mon stock.

Tudors, the Court of Requests became his If we attempt to describe this tenure in protector. These courts, however, were at current legal terminology we shall have best available to the richer copyholder or difficulty. The agreement with the advento a group financing an action. In actual turers had been finally executed. In 1621 fact the copyholder was usually at the Pierce, an adventurer, secured from the

mercy of his lord. New England Council a grant to the We cannot enter here into the details of lands. Title was vested in him and his

the agrarian problem. I can emphasize associates; but the Plymouth allotees only the wholesale character of the were not tenants at will, as they had a process of enclosure, the widespread joint claim arising out of their contract,

misery which induced a succession of not to specific lands but to an assignment revolts as late as 1607, and the crowding of undetermined lands to be made at the of the town by hordes of wretched beings end of a term. Five years later the adven-

without funds or means of livelihood. turers sold out, and the debt was

Fumbling efforts by the crown to investi- assumed by a few leading colonists. To

gate and to control matters by statute liquidate the debt, all heads of families

were unavailing. and young men were made into a comTo the English peasant the effect of all pany and a share allotted to each, and for this was to create a deep and abiding dis- each member of the family. The land trust of the ancient tenure; a noticeable assignments of 1623 were confirmed. The distaste for the new economic, as against | remaining land was then divided by lot, the old customary, rents; a suspicion of and each share received twenty acres, leases by which the new system was put besides the acres already held. This was

into effect; a great solicitude for the tillable land abutting the bay. The rest

recorded title or written evidence of right was designated waste and common land. in the land; and finally a nostalgia for the The meadows were not laid out, but each

one type of landholding, the freehold, year a share was allotted for mowing, where the risks of tenure were slight. based on the number of cattle each man

What transpired in Plymouth was a owned.

reflection of peasant psychosis after The meager record of this transaction

decades of unrest. does not tell much. The Pierce grant had

Even before removal to America the not been assigned and a direct grant was Pilgrims were involved in acrid discus- not gotten until 1629. Since the adven-


Julius Goebel, Jr.

_ turers had sold out all interest and claims required the occupation of land or the including lands, this purchase seems to consequent devolution to the governhave been regarded as having conferred ment.!* This rule had its origin in the fact

title to the soil. The right acquired by that a share of produce had for a period

each shareholder was equivalent to a fee of years to be paid to the company which interest, although allotment was condi- had assumed the debt from the adventurtional upon possession of a share, which ers. The same object could have been required payment in kind toward debt attained by leasing, but I have mentioned

liquidation. _ , that the lease was an abhorred incident of

The earliest deeds, crude in form, indi- English enclosure, and furthermore, cate that landholding was conceived in where civil status depended upon freethe image of the English freehold. There holding, leaseholds would have threat-

is evidence, moreover, that a form of ened the stability and growth of the Yorkshire freehold, the so-called meer- colony.

stead freehold, was known to the settlers. |

This type of land tenure obtained at The picture just outlined of the law’s Royston, near the home of Bradford, and growth in Plymouth over the early was one in which the seignorial element decades of the colony’s existence has was almost indiscernable. Certainly it is a many flaws. It is difficult to get into striking coincidence that meerstead is proper perspective things the outlines of

used for messuage in Plymouth, and that which have been dimmed by the preconthe term so far as I can ascertain was not ceptions of writers and by the erasures of

used elsewhere in England. | time. But as I have said before, if we

| An essential aspect of the land problem remember that these men were English

in Plymouth was the provision in the commoners and religious zealots, the

Code of 1636 requiring the recordation of records of civilization in their motherall sales, gifts, mortgages, and other con- land will enable us to effect that meticuveyances of houses and lands. It went far lous and microscopic reconstruction beyond the limited scope of the Statute of essential to the true depiction of transEnrollments, with the terms of which the plantation of any culture. Local custom, settlers were probably unacquainted. It substantive as the Winchester measure,

was motivated in part by certain borough pretentious as the notion of the code, , customs and in part by the colonists’ rec- ineradicable as the methods of law

ollections of the importance of the writ- administration, fortuitous as a form of ten word as proof of the copyholder’s tenure; bitter experience at the hands of a custom, and the desire to have a means of zealous bishop and his pursuivants, or a remembrancing which would forestall stony-hearted evicting landlord; hope

the mean and petty tricks by which and salvation in the Word of God

unscrupulous landlords had in England preached by word or pamphlet, these cheated the tenant of his property. It is to things are the materials that went with this feeling, of which great evidence settlers to Plymouth and out of which

abounds in contemporary English writ- their law was fashioned. ing on enclosure, that we may attribute © = +The curious melange of religious ideas

the early and widespread enactment of and remnants of English local customs registration statues in colonial America, and practices which pervaded the Plyfor property rights had not become so mouth legal institutions is not without involved as to make recording an eco- parallel, for her neighbors in Massachu-

nomic necessity. setts, Connecticut, and Long Island exhi-

| desire to point out but one further bited similar procilivities. Each colony aspect of the Plymouth land system that had, of course, its peculiar characterisdeserves attention. This was the notion of tics, but in the seventeenth century economic use expressed in laws which before the Leviathan common law had


King’s Law and Local Custom

been set in motion, the basic factor was this century aside as meaningless; neithe transplantation of local institutions ther should we invest it with greater and customary law. Regarded from this importance for the future than it actually standpoint the first century of American possesses. Yet the fact that it gave us law no longer seems chaotic and absurd; legal institutions which the common law on the contrary, the frontier theory, as I never succeeded in smothering is suffihave intimated, becomes an artificial and cient reason for devoting to it some sci-

labored explanation. We cannot brush entific attention.

George L. Haskins

The Legal Heritage of Plymouth Colony

More than one legal historian has more grims who founded the colony were

than once drawn attention to the contribu- simple folk, drawn principally from a tions that Plymouth Colony made to class that, in Governor Bradford’s words, American law in the seventeenth cen- “followed the inocente trade of husbantury.t Yet recent general studies continue — drey.’’> They had little familiarity with

, to insist that Plymouth made few perma- any intellectual currents of the day except nent contributions of any kind to the those pertaining to religion. They were American heritage. Thus Samuel = Eliot not and did not become great shipMorison, dean of American colonial! histo- builders, successful fishermen, or traders.

rians, writes that nearly all American his- They did not establish or live under torians are now agreed upon “‘the democracy in any modern sense. Indeed, insignificance of the Plymouth Colony in much that they accomplished was done the colonial era.’’? ‘““‘By any quantitative after annexation to Massachusetts in standard,” he says, “it was one of the 1691. In large measure, their importance

smallest, weakest, and least important of lies in the example they continue to afford the English colonies.’’? ‘Massachusetts of courage in the face of danger, resourceBay, rather than Plymouth Colony, was fulness in the face of difficulty, and fortithe seedbed of New England. There and in tude in the face of adversity.® In spiritual Connecticut and New Haven the distinc- quality, the Pilgrim leaders were second tive New England institutions of church to none in the New World, and in many and state, culture and commerce were respects, as Henry Adams said of the great

developed.’’4 Virginians at the close of the eighteenthTo this majority opinion of the court of century, they were ‘‘equal to any standard

history these pages are filed as a partial of excellence known to history. Their dissent. In the light of the known evi- range was narrow, but within it they were

dence it is impossible to disagree with supreme.’’” ,

much that Professor Morison has con- At the same time, it must be recognized cluded with respect to Plymouth. The Pil- that Plymouth Colony made several important contributions to American Reprinted from University of Pennsylvania Law legal institutions, not the least of which Review, 110 (1962), 847-859, by permission. was an early articulation of the ideal that 38

, 39

_ The Legal Heritage of Plymouth Colony

finds expression in the famous language _ the statement that the 1636 code estabof the constitution of Massachusetts — ‘‘a lished a constitution of the type that was government of laws and not of men.’’® At to become familiar in America after the

the outset, the colonists succeeded in Revolution. Nothing that was attempted establishing a self-governing community earlier in Virginia was of the same scope;

without benefit of a royal charter, royal there the so-called constitution was

proprietor, or corporate overlord, and in chiefly composed of orders and instructhis respect they evinced an early political tions directed at, but not established by, maturity which was not matched in any the colonists, and certainly it included other American colony. They also suc- nothing that might be termed a general ceeded in establishing a system of law bill of rights.13

suited to the situation and conditions in . , which they found themselves and to the Significance of the 1636 Code

religious purposes for which the colony The 1636 code, with its revision of the

ad been established. colony’s laws and enactment of constitutional provisions, is significant from four

The Code of 1636 standpoints: first, because this codifica-

; ; 14g: tion — quite apart from its constitutional

In assessing Plymouth’s contribution to significance — was the first code of laws

the American legal heritage, it should first : a the credit of having established what may : orthird, . thi , ;vy ; ; gs social organization of the colony; fairly be described as the first American rays because it preserved and gave vitality to

, ;in; ,any inbelongs Northmuch America; be pointed outmodern that to thatsense colony second, because it reveals of the

constitution. At alegal meeting of the General ; errree . English institutions which other-

Court in October 1636, thewise laws ofnotthe ; ‘rad:fourth, might have; survived;

colony were read, and some ‘‘were found because it tains | first introduced worthy the reforming — others the rejecteen ter contributen) ee ern .; vgs at Plymouth, that made lasting ing and others fitt to be instituted and tions to the present-dav 1 eM h made.’’? consequence, a committee OF en an de of ok 6Insetts and, ultimately, towas the pe modern law

appointed to “‘sertefie and prepare such as the United States should be thought most convenient, that

| if approved they may be put in force at the THE FIRST MODERN CODE IN AMERICA

next general court.’’?° The work was accomplished within a few weeks, and In the history of world jurisprudence, the laws were drawn up in the form of a codification of law may be said to have code dated November 15, 1636.1! taken two forms, roughly described by the Two things are remarkable about this terms ‘“‘ancient’’ and ‘“‘modern’’. Of the code, which turned out to be something former type are the Code of Hammurabi,

more than a mere compilation and revi- the Twelve Tables at Rome, and the primision of existing laws. In the first place, the tive Anglo-Saxon compilations which code sets forth the general scheme or antedate the Norman Conquest. Of the latframe of government of the colony: the ter or ‘‘“modern”’ type, the Code Napoléon source of legislative power, the duties and is among the most famous. The distinc-

authority of the several officers of the tion between these two types of codes is colony, qualifications for the franchise, essentially that the ancient code sought to provision for the holding of courts, and reduce traditional law to writing, often as

the source of authority to declare war. a defense against autocratic rulers, Second, it contains a rudimentary bill of whereas “‘modern” codes have had as rights, certainly the first in America, ante- their object — beyond the necessary comdating by five years that adopted by Mas- pilation — the revision of existing law in

, sachusetts Bay in the Body of Liberties of the light of accepted ideals for the pur1641.12 These two features alone justify pose of elaborating the law and providing


George L. Haskins | fresh starting points for legal develop- the society within which they operate. ment.!4 Judged by this test, and particu- Hence, in its operation, law is both an larly in the light of its bill of rights, the anchor to tradition and a vehicle for

first Plymouth code is modern — not so change — a pressure upon social organimodern as the more mature and devel- zation and a device for accommodating oped code adopted by the Bay Colony in new and emerging forces.?°

1648,15 but a first step in that direction Viewed in this perspective, the legal

and certainly antecedent to it. The earlier records of Plymouth, as of any society, collection of Virginia laws, enacted in merit study as a reflection of social orga1619, cannot properly be termed a code, nization and social purpose. They aid in

for it manifests no effort in the direction of the identification of the groups — formal either revision or completeness.!¢ In any and informal — that make up the anatomy

event, the later Plymouth revisions, of social organization and in the delinea-

embodied in compilations of 1658, 1671, tion of the functions of those groups. They and 1684,17 fully justify characterization help us to assess, for example, the situaas a developed and detailed modern code. tion of debtors and creditors, the impor-

All these codes, along with that of Massa- tance of the family unit, the extent to chusetts Bay, provided examples that which environment affects the group and were looked to and borrowed from by the individuals within the group. They other colonies in establishing their legal shed light on the sentiments and undersystems, including notably Connecticut standings that make for stability or the and, later, New York under the Duke of lack of it. Hence, whether one looks to

York’s laws, 18 rules which prescribe that swine shall be

, | ringed?! or to those which prescribe the

A SOCIOLOGICAL DOCUMENT , economic use of land,?? the law is

Although much neglected as source revealed as a highly specialized form of material,19 the Plymouth laws constitute a social control, regulating competing valuable group of contemporary docu- interests between individuals and groups

ments for the understanding of Ply- in organized society. , mouth’s history, and they shed important The enacted laws also shed light on the and broadly diffused light upon social, problem of cultural transplantation to the

economic, and institutional develop- extent that they were imitative or adop-

ments; for, whether one looks to the sev- tive of those portions of the English legal

enteenth or to the twentieth century, law system with which the colonists were

in its broad sense is much more than a familiar. At the same time, their conscious complex of rules for settling disputes rejection of other portions of that system between litigants in court. Law is a com- reflects, for example, their dissatisfaction

mand of the state, but it is also a social with the English land law and with product and an agency of social control, a English criminal law and procedure and

regime for prescribing countless aspects their urgent wish to effect reforms in of the relations of men in organized soci- those areas. Reliance upon and literal use

ety and for adjusting their desires and of biblical texts in framing provisions claims with respect to each other and to relating to crime provides, in another _ things. Although particular legal rules area, evidence not only of tradition and may be the outcome of legislation, execu- design, but of the continuing importance tive order, or judicial decision, by and of the religious ideals which had inspired large those rules reflect contemporary the founding of the colony. pressures caused by the needs and inter- The earliest Plymouth laws reflect conests of the community or of groups within cern about basic problems common to all the community. At the same time legal communities: landholding, the inherirules reflect ethical elements — the sense tance of property, marriage, crime, court of justice and injustice and the ideals of proceedings, and the like. As time went


The Legal Heritage of Plymouth Colony

on and the colony grew, the laws reflected English customs of the districts from not only the maturing social organization, which they had come. The terms and the but local problems and conditions, such forms which appear in the records are in

as those involved in legislation about great part the forms and procedures of bridges and ferries, highways, fairs, manor and borough courts rather than

weights and measures, price and wage those of the king’s courts that developed control, licensing of innkeepers, the qual- the common law.?° That this should be so

ity of exports, and provision for the poor. is not surprising, for in the seventeenth One of the most striking features of sev- century the legal center of gravity for the eral provisions is the typically Puritan average Englishman was the local court of - concern about the regulation of personal the neighborhood — the borough court, conduct and behavior. In the course of the the court leet, and the county court.?’ seventeenth century, Plymouth enacted There he would turn to collect a debt, numerous laws punishing and providing replevy a cow, or abate a nuisance, and it specified fines for drinking, gaming, idle- is a matter of no small interest that the ness, lying, swearing, and the like. They early Plymouth court records bear a strikwere not general prohibitions, but for the ing resemblance of those of the English most part detailed provisions describing manorial courts of this period.?® Morethe offense. The tests of drunkenness, for over, the Code of 1636 is reminiscent of

example, are set forth with a degree of many fifteenth and sixteenth century specificity which would astound many a English borough custumals, which proba-

modern police court.” bly furnish the models on which the colo-

The significance of such provisions lies nists consciously framed this and later not only in their exemplification of Puri- compilations. In them, for example, are tan ideas about right living but in what the same recitals of authority, the specifithey reveal about the Pilgrims’ views of cations of power, the election of officers, law. To them law was conceived of in the oaths to be taken, that are found in the large measure as a restraint on individual English custumals.?9 action in the interest of the whole group. At Plymouth, as in the Bay Colony, the PRESERVATION OF ENGLISH INSTITUTIONS

individual was essentially a member of In adopting local customs. and other

the community, so that there was no practices of the borough and manor

aspect of his life, not even his private con- courts, the Plymouth colonists preserved duct, which was free of the control of the and helped to transmit legal institutions law insofar as the law was designed to fur- which in the seventeenth century still had ther effective organization and good order enormous tenacity as well as vitality. In in the community. To us today such intru- time, those customs were to be smothered sions upon privacy may appear as unwar- by the gradual but inexorable encroachranted invasions of personal liberty, but to ments of the common law of the king’s the Puritans such regulation seemed both courts. Few of the Pilgrim settlers, how-

proper and necessary.”4 ever, had much familiarity with that law Lest it be thought, however, that the save on the criminal side, and the customlegal system of Plymouth was entirely an ary law of the local courts assumed ‘‘a indigenous product of local conditions position of transcendent importance in and of Puritan religious beliefs, it should the life of the ordinary man.’’?° Hence, it

be emphasized that the colonists drew was entirely natural that the colonists

extensively on their English legal inheri- should have availed themselves of their

tance and even on their Dutch experi- cultural inheritance in customary law,

ence.?5 There are several references to the just as they did in religion and methods of common law of England, by which to a farming. Their introduction of a code, of a - substantial degree they felt bound. But recording system, and of a scheme of part-

there are other provisions that reflect local ible inheritance, to give but three


George L. Haskins

instances, appears to have derived in sub- draft of fundamental laws prepared in stantial measure from English customs. 1636 by John Cotton, which was never The idea of a code, for example, although adopted, nothing was done about the projstemming in part from the Pilgrims’ rever- ect until the Body of Liberties was enacted ence for the Mosaic code of the Old Testa- in 1641.33 Thus, the Plymouth declaration

ment, was well known in the English of rights, rudimentary though it was, was boroughs as a device which helped to certainly the first enactment of its kind in assure certainty in the application and America. The preamble promptly claims enforcement of local law and which for the colonists the rights and liberties of became increasingly popular for similar Englishmen, stating that they had come purposes in the New England colonies.! ‘“‘as free borne subjects of the state of Engl

The example of the procedures of the ... endewed [with] all and singular the

English local courts, untechnical com- priviledges belong to such . . .’34 Then, at pared with those followed in the com- intervals between other provisions of the mon-law courts, offered a flexibility that code, come the following: was advantageous to litigants untrained and largely unacquainted with the com- [N]o imposiéon law or ordnance be made or plexities of the forms of action. Thus, the imposed upon or by ourselves or others at

introduction of half-remembered English present or to come but such as shall be ,

customs at Plymouth brought into the made or imposed by consent according to stream of American law institutions the free liberties of the state and Kingdome which would otherwise have perished of Engl. and no otherwise.5 and which, instead, furnished in several That all trialls whether capitall or between areas a foundation on which that law man & man be tryed by Jewryes according to would build. From another standpoint, the presidents of the law of Engl. as neer as those transplantations shed further light may be.36 on the problem of survival and adaptation That the lawes and ordnances of the of patterns of thought and habits of life; at Colony & for the government of the same be

the same time they reflect, as in a glass made onely by the freemen of the Cordarkly, much of the image of local Eng- poracon and no other, provided that in such land that was shortly to disappear from rates & taxacons as are or shall be laid upon

view. the whole they be without partiality so as the freeman be not spared for his freedome, but

the levy be equall. And in case any man

SUBSTANTIVE PROVISIONS finde himselfe aggrieved, that his complaint The fourth distinctive contribution of may be heard & redressed if there be due

the 1636 code and of other laws which cause.37 were in force but not expressly incorporated therein was in the development of As time went on, these fundamentals new laws which have since had a perma- were elaborated and enlarged, so that by nent influence on the American legal sys- 1671 they were expressed in much more

tem. This contribution was in two sophisticated terms and in recognizably

directions. modern form, occupying nearly three full printed pages.3® It is not without interest

A Bill of Rights. First, the code gave that at least six provisions of that later

expression to the idea of fundamental law code appear in equivalent form in the

embodied in a bill of rights and written present-day constitution of Massa-

constitution. That idea had already made chusetts.29 ,

an appearance in Massachusetts Bay in the preceding year when it was agreed to Innovations. The other direction in frame a body of laws ‘“‘in resemblance to a which Plymouth made a distinctive conMagna Charta.’’3? However, except for the tribution to the American legal heritage


The Legal Heritage of Plymouth Colony

was in the formulation of certain provi- there it spread to Connecticut, Rhode sions of new substantive law: civil mar- Island, and even to Pennsylvania and

riage, equality of descent among thus antedated by many generations children, provision for widows, and Thomas Jefferson’s attack on primogenirecording of deeds. All these were ture in 1776. In the ultimate abolition of

marked advances on English law. primogeniture throughout the United | The introduction of civil marriage is States, the influence of the early practice

undoubtedly the best known of Ply- at Plymouth can hardly be ignored. mouth’s innovations. Whereas Anglican The provision for the widow was also doctrine in contemporary England, con- novel.*5 Generally speaking, the common

forming to that of the Roman Catholic law of England at this time assured a

Church, prescribed that marriage should widow a life estate in one-third of all the

be solemnized in church, at Plymouth lands of which her husband had been the colonists introduced marriage by seized during marriage. Plymouth also

officers of the civil government. Bradford recognized a similar general right,*° but

speaks of the practice as having been went far beyond English law in assuring

founded on the “laudable custome of the to her an absolute interest in one-third of Low-cuntries,’’4° and it appears therefore his goods and chattels as well. In Engto have been one of the fruits of the Pil- land, only by exceptional local custom grims’ sojourn in Holland. The practice could the widow share in personal propwas also followed in Massachusetts Bay erty, as opposed to freehold lands, unless when that colony was established, and its the husband left a will which expressly acceptance there can fairly be attributed gave her such property.*” The Plymouth to Plymouth influence.*! Civil marriage law as to personal property was also fol-

is not expressly dealt with in the first lowed in Massachusetts Bay, presumpPlymouth code, but it appears to have tively by adoption. With modifications it been universally practiced. The general ultimately became the law of the Comrecognition of civil marriages in the monwealth. In time, the Statute of DistriUnited States today is too well known to bution in England*® and its counterparts require comment, but the practice can be in America were to assure the widow of traced at least in part to seventeenth-cen- an intestate share in her husband’s per-

tury Plymouth. sonal estate, but these provisions came Among the notable advances of Ply- long after the early Plymouth law.

mouth law over that of contemporary Of even greater significance was the England was the provision for the introduction at Plymouth of a system of

descent of land to all children rather than recording sales, gifts, mortgages, and to the eldest son, as under the English other conveyances of houses and lands.*? rule of primogeniture.*? As early as 1627, Stemming in part from a peasant psyIsaak de Rasieres, then acting secretary of chosis bred of years of misery brought on

New Netherland, visited Plymouth and by the enclosure movements, yet

observed that ‘in inheritances they place influenced by recording practices in the all the children in one degree, only the English boroughs and probably by Dutch eldest son has an acknowledgement for example as well, the recording system his seniority of birth.’’43 The reference to furnished basic guarantees of security of seniority was to the practice of giving a land titles. As early as 1636 two features double portion to the eldest son, pursu- of the modern recording system were in ant to the precept of Deuteronomy 21:17, force at Plymouth, namely, the entry of upon which it was ostensibly based. The the entire deed on an official record and rule of partible descent was expressly prior acknowledgment of the deed before recognized in 1641 in the Massachusetts a government official. These two fea-

Body of Liberties, which apparently tures, subsequently adopted by Massaadopted the Plymouth practice.44 From chusetts Bay and supplemented by two


George L. Haskins

further features introduced in that colony The rule of law was thus much more in 1640, provided the basis for modern than a doctrine of lawyers and political systems not only in Massachusetts but in theorists. Few had suffered more at the the United States generally.5° Indeed, it hands of the prerogative courts than the is worthy of note that, in spite of more _ Pilgrims, and all Puritans were united in than twelve revisions, the present-day a belief in the overriding force of temMassachusetts recording statute>! goes poral law that reflected moral law. As

back, substantially unchanged in form, to early as the Mayflower Compact in 1620,

the Bay Colony act of 1640, which the signatories convenanted and com-

appears to have stemmed from the earlier bined into a body politic and declared by

enactment at Plymouth. virtue thereof that they did ‘‘enact, con-

| | stitute and frame such just and equal

The Rule of Law | laws, ordinances, acts, [and] constitu-

tions... as shall be thought most meet Each of these contributions of Ply- and covenient [sic] for the general good mouth — to its own laws, to the law of of the colony.”’54 Note that those laws, the Bay Colony, and, ultimately, to mod- acts, and constitutions were to be ‘‘just ern American law — is impressive. If and equal”; note, also, that the signaMassachusetts Bay was to receive much tories themselves covenanted to give “all

of the credit as the vehicle of transmis- due submission and _ obedience’’

sion, the fact illustrates the old saying — thereto.** Later, in the Code of 1636, the that the Pilgrim saddle is always on the idea of a government of laws is reflected Bay horse. What is particularly impres- more explicitly in provisions such as that sive, however, is the evidence which which prescribed that ‘“‘no imposicon law appears early and persistently in the Ply- or ordnance be made or imposed upon or mouth enactments and court records, that § by ourselves or others at present or to

the colonists were governed by and lived come but such as shall be made or

under a rule of law.52 Few ideas have had imposed by consent according to the free so profound or so pervasive an influence __ liberties of the state and Kingdome of

in Anglo-American jurisprudence as has Engl. and no otherwise.’’5* By 1671, the idea that no man is above the law. It when the Plymouth ‘“Generall Funda-

has crystallized in the doctrine of the | mentals” had been elaborated into a

“rule” or “supremacy” of law, which has recognizably modern bill of rights, it was long been regarded as one of the central ordered and declared in language echoand most characteristic features of the | ing Magna Carta, and later to be repeated

Western legal tradition. The doctrine first | 1mso many American state constitutions: found expression in medieval England in ©

the course of struggles to check the That Justice and Right be equally and threatened usurpations of kings. It also is impartially Administered unto all, not sold, evident in the numerous borough codes denied or causelesly deferred unto any. that expressly guarded the customs and [T Jhat no person in this Government shall

franchises of townsfolk from the be endamaged in respect of Life, Limb, Lib-

encroachments of the king’s officers and erty, Good name or Estate, under colour of the king’s courts. In the seventeenth cen- Law, or countenance of Authority, but by tury the idea rose to central prominence virtue or equity of some express Law of the both as a weapon of attack upon the royal General Court of this Colony, the known prerogative courts and as a means of pro- Law of God, or the good and equitable Laws tecting the established rights of individu- of our Nation suitable for us, being brought als from the jurisdiction of such tribunals to Answer by due process thereof.S”

as the High Commission and the Star Chamber, which claimed not be be bound Not only the provisions of the first and by the accepted procedures of the ordi- —_ later Plymouth codes, but the numerous

nary courts.53 orders, fines, and judgments recorded in


The Legal Heritage of Plymouth Colony

the court records of the colony attest to believed to thrive on the right living of the persistent conviction that the laws its members. Indeed, there is more than a must be enforced and obeyed. The con- casual relation between Plymouth ideals scious adoption of laws for the expressed and the recurrent statements throughout

good of the community, together with the Greek literature that to obey the law is to numerous examples of restraint on indi- be free. That idea was echoed and given vidual action, reflects an overriding con- wide currency by Cicero, and later was cern with the interest of the order of the reinforced by Puritan doctrine which pre-

whole group to which the law applied. scribed obedience to the law as a reliAs in ancient Greece, where the promo- gious duty.5® Hence it has become a tion of good order in the community was priceless legacy of Western civilization believed to give individuals a wider free- that we are slaves of the law as the condidom, so in Plymouth the community was tion of our freedom.*?

Stanley N. Katz |

The Politics of Law in Colonial America: Controversies over Chancery Courts and Equity Law in the Eighteenth Century

In a variety of ways, each of the colonies 1768. In North Carolina grave difficulties

adopted portions of the law and (espe- arose when Governor Gabriel Johnston cially) the procedure of the High Court of attempted to establish an exchequer court

- Chancery in the years following the to facilitate the collection of quitrents. In

Glorious Revolution. They also inherited South Carolina one of the results of the the seventeenth-century English tradition “revolution” of 1719 was the elimination of antagonism to their courts of chancery of the colonial chancery court, though it

and maintained it during an era in which soon reappeared in a slightly different chancery had long since been quietly form. Nowhere, however, was the ques-

accepted as a part of the legal system of tion of chancery courts more divisive than

England. Roscoe Pound long ago sug- in New York. gested that ‘‘Equity has never been popu- The initial designation of a chancery

lar in America,”’ but he was imprecise. In court in New York was by the act of the the colonial period, at least, Americans colonial legislature in 1683 (reaffirmed in objected to chancery courts rather than to 1691 and 1692), which established the equity law. The problem is to determine court in the governor and council. The

why there was such a radical disparity of origin of the functioning chancery is attitudes toward, on the one hand, the found later, however, in the subsequent institution and, on the other, the type of gubernatorial ordinances of Nanfan and

justice it dispensed. Cornbury (1701 and 1704). The court

Most of the colonies south of Connecti- operated sporadically for a few years cut experienced episodes of bitter opposi- until, in 1711, Governor Robert Hunter tion to their chancery courts. In New determined to provide an efficient equity Jersey the issue flared up twice, the result court for the colony. of the Elizabethtown Bill in Chancery in Hunter hoped that he could persuade the 1740s and of Governor William Frank- the royal authorities in England to order

lin’s efforts to reestablish the court in the establishment of an independent

Reprinted, in abridged form, from Law in American court, and he reported to the board of History, ed. Donald Fleming and Bernard Bailyn, trade that he had been “pelted with Peti(Boston: Little, Brown and Company, 1971), pp. 265- tions” for the court both in New York and

266, pp. 273-284, by permission. New Jersey. He argued that there was a 46


The Politics of Law in Colonial America

need for relief from the vagaries of the to the court to their determination to dis-

common law, citing in particular an claim ‘‘all powers not immediately

excessive judgment in an action for debt, derived from themselves,’ and mainand he also stressed his own inability, as a tained that the court must be kept open as

nonlawyer, to provide adequate judgment a demonstration of the rights of the in chancery. The home government cau- Crown.® The intensity of the conflict can tiously assured Hunter that he had author- __ probably better be understood by Hunter’s

ity to act as chancellor by virtue of his boast to the board of trade in 1717 that royal commission, and he proclaimed the __ prior to 1711 it had been impossible to

court open for business merely on the collect quitrents in New York, but that

advice of his council in 1711.3 subsequently ‘‘Deliquents were subFrom 1711 until the American Revolu- _ poen’d”’ to the chancery, the arrears “‘were

tion a gubernatorial chancery court was immediately brought in and have ever maintained almost continuously in New since been regularly paid into the King’s York. A few governors, especially in the Receiver.’’”

late 1720s and early 1730s, hesitated to Governor William Burnet, one of the exercise the chancellor’s powers, but the few legally trained New York chancellors, framework of the court survived to be per- vigerously exerted his chancery powers in

petuated by their successors. Its business order collect quitrents. He also progrew quite rapidly after 1750, and by the claimed a Chancery Fee Ordinance time of the American Revolution the New designed to regularize practice in the York chancery was a respected and ordi- court and to avoid the excessively high nary court of justice which transacted fees charged by lawyers for equity litigamuch of the same sort of work as its coun- tion. Chancellor Burnet’s zeal was finally

terpart in England.+ rewarded on November 25, 1727, with a To reject ‘losers’ is risky historical series of assembly resolutions against his technique, though, and to ignore the exercise of judicial power. The preamble thirty years of opposition to New York to the resolves asserted that “‘by the viochancery is especially misleading, despite lent Measures taken in and allowed by it

the fact that the court emerged apparently [the chancery court], some have been unchanged by the attacks upon it. The — ruined, others obliged to abandon the first chancery controversy was coinciden- Colony, and many restrained in it, either

tal with Hunter’s opening of the by Imprisonment, or by excessive Bail

‘“‘modern’”’ court, and it appears to have exacted from them, not to depart even been a classical legislative objection to the when no Manner of Suits are depending establishment of a prerogative court. On against them”’ The first resolve stated that,

November 24, 1711, the assembly without legislative consent, the chancery

resolved that “the erecting of a court of court ‘“‘is unwarrantable, and contrary to

chancery without consent in general the Laws of England, a manifest Oppresassembly, is contrary to law, without sion and Grievance to the Subjects, and of

precedent, and of dangerous consequence a pernicious Consequence to their Liberto the liberty and property of the subject.”’ ties and Properties,’’ and two additional To which the council made the traditional resolutions promised an inquiry into the

retort: ‘It is not without precedent that a proper basis of an equity court in New Court of Chancery has been erected in this York, and an act declaring “all Orders, Province without consent in General Ordinances, Decrees and Proceedings’”’ of

Assembly, and if the erecting of it without the court “‘to be illegal, null and void, as their consent be lawfull, we are very well by Law and Right they ought to be.’’8

assured that it will not be attended with The council responded with the stan-

any dangerous consequences.”’> Governor — dard gubernatorial defense of the chanHunter described the ‘‘angry mood” of the cery: it had been established pursuant to assemblymen, attributed their opposition the powers granted in the royal comis-


Stanley N. Katz sions to Governors Hunter and Burnet. heavy on several Patentees.”’!° The 1727 The councillors pointed out that the 1711 incident constituted a major political assembly resolution had been rejected by crisis in New York, and although Peter the board of trade and asserted that ‘‘a Zenger’s New York Weekly Journal was Court of Equity is necessarily supposed in reminding colonists of Philipse’s selfour Constitution, and that Justice cannot interest in the matter a decade later, it be obtained in all Cases without the Aid of seems clear that the attack on the court such a Court, and therefore that the King struck a genuinely sensitive spot in the has undoubtedly a Right of erecting the government of the province.

same in the Plantations.’’ Admittedly, The repercussions of the assembly

some reforms should be made, and the resolves of 1727 were so profound that council advised the governor to review = Governor John Montgomerie, who held the Chancery Fee Ordinance with an eye __ office from 1728 to 1731, refused to act as

to changes which would prevent lawyers chancellor. Montgomerie reported to the from augmenting bills of costs and which board of trade that the chancery contro-

would end the traditional delay in chan- versy had divided the province into three cery proceedings. More important, they parties: one, based in the council, sup-

argued that the motives of the assembly- ported the court as reformed by Burnet’s

men were suspect: ‘‘The Design of these fee ordinance; another party opposed

Resolves was not to redress Grievances,’’ “this or any other Court of Equity that is

but ‘‘to show the People, what Influence not Established by an Act of General the Assembly doth assume over the other Assembly, and they particularly insist Branches of the Legislature here, as well upon the Governors being by law incapas to alienate the Peoples Affections from able of being Sole Judge’’; the third, ‘‘not His Majesty’s Government, by making so violent as the last but yet desirous of

them believe that illegal and arbitary some alteration,” perferred to reform the Powers were and are given to the Govern- court by establishing the equity power in

ours of this Province.’’? , both the governor and council.!2 MontgoBurnet and his supporters were in no merie confessed to Newcastle that he him-

doubt as to the true reasons for the out- self thought the court ought to be

burst against the chancery court: the gov- reformed, but there would seem to be a ernor had sealed a decree ‘‘only two days good deal of truth in the charge made by

before” which ran against Adolph Phi- Lewis Morris, Jr., that the governor’s

_ lipse, the speaker of the assembly and the unwillingness to open the chancery was leader of its antigubernatorial faction. due to his fear of economic retaliation by William Smith and Cadwallader Colden the assembly, which bitterly opposed the explained in detail how Philipse and his court.!3 The board of trade directed Mont-

associates had rammed the resolves gomerie to hold courts of chancery

through in the closing hours of the last (’when there shall be occasion, as former session of the 1727 legislature, which |= Governors have done’”’), but to no avail. Burnet as quickly dissolved in retaliation. Montgomerie, it would appear, simply Burnet seemed to acknowledge that the refused to endanger his relations with the opposition to chancery was based on Philipse faction.14 The board also urged something more than Philipse’s spite, the council president, Rip Van Dam, who however, for he reported to the board of — succeeded to the government upon Monttrade: “‘One great reason why the Country gomerie’s death in 1731, and the next govPeople are prejudiced against the Court of ernor, William Cosby, to hold the court in Chancery has been that several Bills have __ order to facilitate the collection of royal

been brought to ascertain and recover §quitrents in New York.’ | large sums due to the King for Quit Rents |= = The most dramatic, but by no means the on which I have generally given Decrees last, act in the history of the chancery in favour of the King ... but this rais’d a court in New York was played out during pretty general clamour, because it fell the Cosby administration. The script was

| , 49

The Politics of Law in Colonial America

more or less the same as it had been pre- the court provoked an immediate outcry viously in New York — the argument by Cosby’s opponents that such an estabturned on the necessity for legislative lishment threatened their liberties and consent in the establishment of a chan- properties.‘7 The governor and council cery court — but, confusingly, the charac- defended the exchequer court on the ters switched roles. The former defenders ground that it was simply a better means of the gubernatorial court became the of affording an equity jurisdiction in New leading protagonists of the prerogative of York, especially since the governor was the assembly, while Philipse and other not a lawyer and he was so frequently antichancery men of 1727 took up the away from New York City that sessions of

governor-chancellor’s defense. The rea- the chancery could not be held son for the exchange was that with the regularly. 18

change in governors, from Burnet to When the governor pressed forward Montgomerie and Cosby, the former polit- | with the suit against Van Dam, Chief Jusical ‘‘ins’’ had become ‘‘outs’”’ and one of _ tice Lewis Morris denied that his court

the time-tested techniques of early-eight- had jurisdiction to entertain the case, eenth-century ‘‘outs’” was to attack the affirming his belief in the necessity for

structure of chancery courts. , legislative consent in the establishment of

_ The details of the controversy of 1733- new courts, and Cosby dismissed him 1737 can only be sketched hurriedly here, from his judgeship. The case was never but the essential point is that two concur- brought to a conclusion, but the contro-

rent problems were involved. The first versy was deemed of such importance was Cosby’s attempt to establish an equity that, at the instance of the Morrisite oppo-

jurisdiction in the exchequer branch of sition, the question of the exchequer juristhe New York Supreme Court, and the diction was debated before the assembly

second was the governor’s use of his per- on June 7, 1734, by William Smith sonal chancery powers in determining the (against) and Joseph Murray (for the validity of conflicting titles to the court). Perhaps, as Smith’s son uncharit-

“Oblong” land graft. ably concluded, ‘‘the Senators were con-

The exchequer episode is the better founded by the long arguments they had known. It arose from Governor Cosby’s heard,” or, more likely, their differences

need to find a legal forum in which he had in reality little to do with equity

might sue Council President Van Dam for courts, but the assembly took no action to half his income as lieutenant governor in __ alter the structure of the court system. 19

the brief period between Montgomerie’s The second part of the equity controdeath and Cosby’s arrival. A common-law versy took place in Governor Cosby’s action was the ordinary procedure, but it court, which was otherwise not a very had the twin disadvantages that it permit- busy institution. Cosby, like Montgo-

ted trial by jury (between a newly merie, was allied with those who had

appointed royal official and a respected opposed Governor Burnet (and his chanlocal merchant) and ‘“‘set-off’? (which cery court) and he too was reluctant to

could reduce Cosby’s recovery by the hold the court. Vincent Matthews, a leadamount of income he had received from ing member of the anti-Cosby group, com-

the New York post prior to his coming to plained that the attorney general was America).1© Neither could Cosby proceed bringing chancery bills for the collection in the chancery, where he would be sole of quitrents against Cosby’s opponents in

judge in his own case, and therefore he Orange County, but the minute book of prosecuted his suit on the equity side of the chancery court indicates that few bills the exchequer division of the provincial were actually heard by Cosby.?° The govsupreme court. There was a rather vague ernor knowingly provoked the wrath of

tradition of such an equity jurisdiction in his opponents in 1734, however, by enterthe supreme court, but the council’s ordi- taining a bill alieging that the local holdnance of December 4, 1732, establishing ers of a Montgomerie patent to the huge


Stanley N. Katz

Oblong tract located along the New York— cery suit are high; the only appeal is to the

Connecticut border had acquired their crown in council (‘‘no Costs are to be title by fraud. The suit was initiated by recovered [as it is said ] when the Suit is Francis Harison, an associate of the gover- = brought in the King’s Name’’); and, worst ~ nor who was acting on behalf of a group of of all, the chancellor is by definition an complainants who had a later English pat- interested party since as governor he has ent to the land. The importance of the suit the right to regrant forfeited lands. Lewis

was not only that it threw into question Morris, Jr., defended the petitioners and | most of the existing titles to land in New the pro-Morris assembly on November 6 York, but also that the Montgomerie passed the by now traditional resolution patentees were without exception politi- that a gubernatorial chancery court, withcal opponents of Governor Cosby who did out legislative consent, was ‘‘contrary to not scruple to interpret the attack on their law’ and ‘‘of dangerous Consequence to

grant in the most extreme light: “Ifa Gov- the Liberties and Properties of the ernour can set aside patents without a People.’’22 tryal at Law, a Governour can soon make Like the exchequer incident, the _ himself master of any mans Landed Estate Oblong suit provoked a loud and intense

in the province that he pleases, & if public debate in New York over the rights the practice be once Established the of the people and the prerogatives of the whole people will in consequence soon crown. In both cases the defenders of leg-

become tenants at will and slaves to islative consent in 1735 were the defend-

Governours.’’?! ers of prerogative courts in 1727. In both In October 1735, fifty-nine of the New cases the antigubernatorial lawyers

York patentees petitioned the assembly to offered exceptions to the equity jurisdic-

intervene in the chancery proceeding tion contended for by government offiagainst them, requesting the legislators cials, and the exceptions were overruled. “to take such Steps as may secure the Neither case ever came to a final decision. Liberties and Properties of [the petition- The issue was as Clear as it was narrow,

ers]... from being at the Disposal and for even former Chief Justice Morris

meer Will and Pleasure of a single Man, admitted that New York required a court without any reasonable Check or Appeal of equity. It was put precisely by Cadwal-

for Relief within this Province.” They lader Colden: ‘“‘The Question must be pointed out that the assembly had twice reduced to this Whether all the Courts of previously spoken out against the gover- Equity as well as Law are & ought to be

nor’s chancery court, and yet had neg- erected by the Governour & Councils lected ‘‘to give these Resolves their full Authority along or by the Concurrent Force, by bringing in of Bills ... or mak- Authority of the Assembly for as to what ing proper Remonstrances thereupon.”’ the King can do by his Prerogative comes The case for action was now clear, since not into the present debate.’’ Colden did

the equitable challenge to their patent had not deny that New Yorkers had a no precedent since the era of James II, “birthright”? to a court of equity, but he when Chancellor Jeffries abetted the royal argued that the court could not constitu-

scheme to vacate English corporate tionally exist ‘‘without any positive law

charters in order to establish ‘‘a despotick determining it but in the Representative

Power in the King over the Rights and of the whole Community or in the Liberties of the Subject.’’ The threat to Legislature.’’3

New Yorkers was serious, since most These prolegislative sentiments were

landowners held such technically imper- echoed by the assembly in its September fect title that “there is not one patent in 7, 1737, address to Lieutenant Governor the whole Country for the setting aside of George Clarke, asserting the impropriety which a cunning Lawyer may not find a of a gubernatorial chancery court founded Pretence.”’ Furthermore, costs in a chan- on the commission of the governor. In


The Politics of Law in Colonial America

what would prove to be the last of the ical criticism of chancery courts had lost assembly’s protests against the chancery, even its rhetorical usefulness.

the legislators reminded Clarke of their Two very general conclusions about previous resolutions on the subject: eighteenth-century America can also be “Though these Resolves, have been as suggested. In the first place, the period

often as made, treated by the Governors, from 1700 to 1750 can be seen as one of with an unreasonable Disregard and Com- unexpected importance in constitutional tempt of them; yet to Men of Prudence, and ideological development. The attack they might have been effectual to have on chancery courts and the elaboration of made them decline persisting in a Proce- the arguments for legislative consent dure so illegal and so generally dissatis- appear as an important form of an emergfactory; and which (as they managed it) ing political maturity which operated to proved of no use to the Publick, or benefit lend prestige and dignity to what seem to to themselves.’’?+ Clarke did not discuss have been basically mean-spirited politithe chancery question in his answer to the cal disputes. The attack may also be a Assembly, but neither was he an active token of a growing intellectual awareness chancellor. In effect, however, the contro- of American peculiarities — in particu-

versy over the New York chancery court lar, a probing toward the graduallyended with the death of William Cosby in realized incongruity in the location of 1736 and the dispersion of the Morrisite sovereignty in the colonies. The very political faction in the Clarke administra- existence of chancery courts, with their

tion. The chancery was henceforth long tradition in English history, made it removed from politics and freed for its apparent that, in America, if the condramatic legal development after science of the king was not the source of

mid-century. equity jursdiction, then a more popular legislative source must be _ identified.

Power without an attributable source Even this rapid survey suggests certain caused unease, and the legislatures

conclusions about the colonial chancery rushed in to assert the prerogatives of the controversies. Equity law was accepted by people. At the same time, the whole all concerned — the dispute was over the question of the relative functions of the constitution of the courts that dispensed different branches of government began equity. The crown and the proprietors to be explored, although the inquiry was

insisted upon a narrow, prerogative not pressed home.

authority for chancery courts, while most Second, one is struck by the tenuous colonists were equally insistent upon the connection between ideology and politineed for legislative consent. The occur- cal action in the early eighteenth century, rence of political attack upon chancery as compared to the radical intensity of courts was closely related to their use as their interconnection in the Revolutionforums for the collection of quitrents and, ary era. To cite only the most obvious more important, to their convenience as example, it was Lewis Morris who

rallying points for the “out” or ‘‘country”’ defended Governor Burnet’s exercise of factions in colonial politics. Objections equity power in New York and New Jerwere seldom to the kinds of mundane pri- sey in 1727 but who opposed both chanvate law which occupied most chancel- cery and exchequer equity jurisdiction in

lors and equity courts. Finally, the New York in 1733-1737, and yet himself

controversies had pretty well ceased by served as an apparently untroubled chan1750, when the generally recognized need cellor in New Jersey after 1738. His for equity as part of the Anglo-American inconsistency is typical of the era, and it legal system had resulted either in viable indicates the ephemeral character of so chancery courts or in alternative devices many of the seemingly profound constiin the existing common-law system. Polit- tutional struggles of the first half of the


Stanley N. Katz |

century. Like so many others, the prob- ideas were brittle and discontinuous, conlem of the chancery courts arose fitfully, trasting dramatically with the more radiran close to the surface of politics and cal character of constitutional rethinking ideology, and did not really have to be which developed after mid-century.

solved. In the first half of the century

David Flaherty

Law and the Enforcement of Morals in Early America

The Relationship of Law and Morals _ contrary to the law of God and of right reaThe moral law was the offical guideline son, which the learned in those laws have

for the enforcement of morals jin the anciently and still do hold forth as the

American colonies and the basis of the fundamental basis of their laws, and that civil law itself. Sin and crime, divine law if anything hath been otherwise estaband secular law, the moral law and the _ lished, it was an errour, and not a law, criminal law were all closely intertwined. being against the intent of the law-

The preamble to the famous Massachu- =‘ ™akers.’’? All secular laws, especially in setts Code of 1648 took specific notice of the realm of morality, tended toward the

attempts to distinguish between the laws | Same end of pronouncing punishment of God and the laws of men. When the ‘‘against those crimes which God’s eternal administration of civil authority “is | !@w has condemned.” An earthly power according to deductions, and rules gath- Could neither dispense with nor ignore

ered from the word of God, and the clear those divine stipulations. | light of nature in civil nations, surely The Puritans were accused of attempt-

there is no humane law that tendeth to ing to legislate the Mosaic code into prac-

common good (according to those princi- __ tice, since to them the Bible was a model

ples) but the same is mediately a law of for the organization of God’s community God, and that in way of an Ordinance on earth. In both England and America in which all are to submit unto and that for the sixteenth and seventeenth centuries it

conscience sake.’’! In theory it was not was fashionable to cite the Bible as

possible for the divine and secular laws to authority in particular legal cases. The contradict one another. According to Gov- New England colonists specifically listed ernor John Winthrop and his associates, biblical authority for statutes in their law “we have no laws diametrically opposite codes and firmly believed that the English to those of England, for then they must be common law was grounded on the law of

ne God.3 Yet the insistence that the criminal

_ Reprinted, in abridged form, from Law in American statutes must be inspired by the moral law History, ed. Donald Fleming and Bernard Bailyn did not result in the simple enactment of (Boston: Little, Brown and Company, 1971), pp. 203- biblical precepts into law. In 1636 the

253, by permission. | Massachusetts General Court instructed o3

David Flaherty , 04

the governor and certain of his associates Despite their common commitment to to draft a code of laws agreeable to the the support of the moral law, the church word of God and to decide cases in cur- and the state in early America had separent litigation “according to the lawes rate goals and roles. While the Massachunowe established, and where there is noe setts Code of 1648 lauded the advantages law, then as neere the lawe of God as they of church and state joined in the covenant

can.’’* The code was not to be drawn of grace growing up together, “whereby directly from the word of God. A draft by — each do help and strengthen other (the

John Cotton entitled ‘‘Moses His Judi- Churches the civil Authoritie, and the cialls’”’ purported to do just that and was civil Authoritie the Churches), the Camnot enacted into law by the authorities.‘ bridge Platform of Church Discipline of The colonists conceived of the Bible asa __ the same year asserted that “‘as it is unlawsource of basic wisdom in law as in moral- full for church-officers to meddle with the ity; it was a general preceptor, not a tech- sword of the magistrate, so it is unlawfull

nical guide to those who defined and to meddle with the work proper to

enforced the ordinary laws. The laws of church-officers.”® In general terms the God were the ideals to be approached in Code of 1648 asserted the primacy of sec-

human affairs. ular control over society as a whole. In The essential contribution of the moral England the established church shared law to the secular law was the equation of this supervision over society through the sin and crime. In all but a literal sense, —_ system of ecclesiastical courts which paid what was a sin was alsoacrime:® thus the _ particular attention to personal behavior.

reference to fornication in a Massachu- No American colony joined church and setts law of 1665 as ‘“‘a particular Crime, a state together in this fashion for the shameful Sin, much increasing amongst enforcement of morals. In sixteenth- and us, to the great dishonour of God, and our _ seventeenth-century England it was also Profession of his Holy Name.’’” The pre- not unusual for various levels of ecclesias-

cepts of moral law furnished the initial tical officials to serve as justices of the

reasons for punishing a crime. If God had peace and preside with lay magistrates at branded certain actions as seriously _ the court of quarter sessions.® Such a prac-

, immoral and sinful, these normally tice was never followed in New England

became crimes by statute in every Ameri- and only rarely in any other American can colony, for the authorities were bound colony. The primary responsibility for the

to inhibit such behavior. enforcement of morals was in the hands of

, In a society where law and morals were the colonial state, and all of its officials so closely identified, the nature and were laymen. !°

extent of the parallel relationship between ,

church and state becomes significant. The The enforcement of the moral law

universal acceptance of Christianity in the became one of the primary obligations of American colonies inevitably made for a colonial governments. The goal of colo-

close association between church and nial authorities was to translate the divine state, but the accompanying harmonious- moral law into criminal statutes in the ness of moral outlook made an official interests of popular morality. The civil interlocking unnecessary. Modern com- authorities in every colony made a regular mentators have recognized that a high effort to establish and uphold high standegree of homogeneity in a society is an dards of conduct in society as an integral essential prerequisite to the legal enforce- part of what they were expected to do.1! ment of morality. Such a precondition Solomon Stoddard told the assembled existed in colonial society. On this basis it rulers of Massachusetts in 1703 that was possible in some colonies to have a “rulers have Opportunity many ways to close association of law and morals with- discountenance sin; and thereby to give a

out an accompanying intermingling of check to mens corruptions: the holding | church and state. the reins of Government strait, bridles


Law and the Enforcement of Morals in Early America

men in and restrains them from much state, or religion, or the person, or propevil.’’!2 The magistrates had an essential erty.”!4 Devising suitable sanctions for role to play in the suppression of vice in ‘“‘the effectual suppression’ of such society. The threat of the judgment of God offenses was a common problem that hung over a society where vice was not repeatedly came up for reconsideration. 5

discouraged. The laws regulating morals in most of

New England and in New York were par. ticularly distinguished by their initial The Regulation of Morals severity. The Massachusetts Code of 1648

The intimate association of law and made adultery a capital offense.1° Both morality in early America resulted in the parties to the adultery were to be put to enactment of legislation tending toward death, according to the Mosaic prescripthe establishment and maintenance of _ tion. In fact this punishment was rarely high moral standards. As Cotton Mather inflicted on anyone in New England.’”

stated, ‘‘Good laws are important Although the death penalty for adultery

machines, to keep very much evil out of was not abolished until after the Charter

the world.” The institutionalization of the of 1691,18 there is evidence of some earlier regulation of morals primarily occured in doubts. In 1642 Governor William Brad-

_ the first decades of the settlement of a ford of Plymouth Colony wrote to the colony, when authorities were forced to authorities in Massachusetts that it was give substantial consideration to the for- not clear to some of his associates that

mulation of a criminal code. Such statutes adultery should be punished with initially set forth standards of personal § death.1 The Code of 1648 further stated conduct that reflected the community’s that fornication should be punished by general opinion. Legislation played a part the requirement of marriage, by a fine, by in sustaining the conviction that some corporal punishment, or by all three, as types of personal conduct were morally the judges will decide “‘is most agreeable unacceptable. The secretary to the Gen- to the word of God.?° The recognition by eral Court of Massachusetts reported that secular authorities in each colony that

the Code of 1648 was a response to the some types of fornication were more _

_ pleas of the populace for a printed book of serious than others indicated that in many laws, ‘‘wherein (upon every occasion) you significant ways the colonists were not as

might readily see the rule which you strict as they might have been concerning ought to walke by.’’!3 And there were sim- the extent to which law and morals ilar pleas elsewhere. There is hardly a should be identical. Any prosecution specified moral offense in New England associated with an impending or curthat did not have its counterpart in the rently existing marriage reduced the sigcriminal code of Virginia in the seven- nificance and punishment of the act of

teenth century. The formulation of laws fornication. Colonial authorities also con-

for the regulation of morals did not even sidered copulation between a married require a vigorous established church for man and a single woman as an act of forthe initial impetus, as in the case of Vir- nication. Such an offense by a married

ginia and Maryland. woman was adultery.?1 The sexual code, The statute books of the various Ameri- reflecting the early existence of a double

| can colonies reveal a series of laws standard in America, was rarely very

designed to regulate public morals. The harsh on males. concerns of Virginia and Maryland with In Pennsylvania William Penn’s Great drunkenness, fornication, adultery, blas- Law of 1682 contained elaborate proviphemy, bastardy, swearing, rape, and the sions that were extremely enlightened in like, were typical. In Virginia, as in the the sense that rape, sodomy, bigamy, other colonies, ‘‘the Assembly passed incest, and adultery were not made capimany more laws dealing with public tal offenses. Most were punished by some

morals than with offenses against the combination of whipping, forfeiture,

56 ,

David Flaherty

fines, and imprisonment. The failure of as the religious motive weakened among these lighter sanctions resulted in an some individuals in the course of the sevunusual, short-term trend toward increas- —_enteenth century, a wide variety of politiing severity after 1700, culminating inthe cal, economic, and social justifications for wholesale adoption of the English penal the enforcement of morals appeared in its code in 1718.?? Adultery remained anon- _ place. The prosecution of moral offenders

capital offense. In the eighteenth century allegedly helped to avert various social the penalty for the third adultery convic- and economic ills. Blackstone’s explanation was twenty-one lashes, seven yearsin tion of why bigamy was more than an jail, and marking with an ‘‘A’”’ on the fore- offense against the ecclesiastical law head.?3 Fitzroy noted that fornication was _ illustrated this: ‘“‘The legislature has punished more severely after an act of thought it just to make it felony, by reason 1700 with a choice of whipping or a fine, of its being so great a violation of the pub-

but “before that there was considerable lic economy and decency of a well

confusion, and, though the offence was of __ ordered state.’’27 Such mundane consida moral nature, it was treated quite mildly erations were never far from the surface in with punishments of a few lashes or light colonial lawmaking and law enforcement.

fines.’’24 | | The upper classes in colonial society In the view of the long traditions of the considered it a part of their moral respon-

English common law, there was little sibility to impose appropriate forms of

originality in the colonial criminal laws morality on the lower orders. This was a regulating morals. Most statutes reflected common phenomenon in preindustrial those enforced by the civil and ecclesiasti- | England. Such legislation also served as a

cal jurisdictions in England. The criminal handy instrument of social control. In

law was one area where the charter provi- fact, a student of Virginia society has sugsions requiring the colonists to fashion — gested that gradually ‘‘the more severe

statutes as similar as possible to the laws injunctions against immorality were

of England made a good deal of sense. For directed in support of a stabilized class serious crinimal offenses a colony like system.’’?8 This was evident in Virginia Virginia or Maryland either enforced the legislation prohibiting ten specific games English statute without question or for- to persons of the lower classes, including mally adopted it into its own jurispru- artificers, fishermen, husbandmen, labordence. In the late 1650s a Virginia statute ers, Mariners, apprentices, and servants.?° simply stated that the English law against In the area of sexual offenses in Virginia, bigamy was to be in force.?5 Even in New free persons were less frequently proseEngland the criminal laws enacted by the cuted for fornication or adultery than ser- , colonists were not particularly reformist vants, who were regularly brought to in character, except for a general reduc- justice.3°

tion in the number of capital offenses. Modern authorities on criminal law Wolford concluded that in the Code of advocate distinctions between public and

, 1648, many of the criminal offenses, private offenses and between acts of ‘while founded on Mosaic law, were in duress and relations between consenting

considerable conformity with the com- adults. Could the American colonists

mon law of England.’’?® make such distinctions in theory? In the

The motivation for the enactment of first place the colonists did not conceive moral regulations did not remain uncon- of themselves as using the power of the

taminated by baser considerations. state to enforce purely moral or religious

Although the exact array of motives was standards. Since the moral law was the rarely evident, many moral offenses were __ basis of the criminal law, the secular and

punished not simply because they were spiritual interests of society were interimmoral but because they caused social twined. Private immoral acts might not be

| problems and disturbances as well. Even specifically harmful to others, while

, o7

Law and the Enforcement of Morals in Early America

remaining injurious to the spiritual inter- | ment was the Achilles heel of moral reguests of the offender, offensive to God, and lation: ‘“‘You have called us from amongst

calculated to call down his vengeance the rest of our Bretheren and given us

upon society as a whole. Any immoral act power to make these lawes: we must now

could thus be construed as a threat to the call upon you to see them executed: public safety and welfare. “‘The well- remembring that old and true proverb. ordering of this plantation,’ which was The execution of the law is the life of the

the goal of the Massachusetts General law.’’3?

Court in 1635 in establishing a committee In fashioning law-enforcement apparato draft laws, automatically included the tus in the New World the colonists faced enforcement of morals in every area of an interesting structural problem. In Eng-

existence. land the enforcement of morals was the

Practical limitations on the ability of primary responsibility of the established the state to interfere in private lives and Anglican Church through its ancient sysconcern for the privacy and freedom of tem of ecclesiastical courts. These were individual citizens sometimes combined organized from the parish and diocesan

to restrict severely the capacities of the level of archdeacon’s and consistory state in the realm of private relations. courts to the provincial court that super-

There is surely some relevance to the vised a region. A separate system of eccleissue of immoralities committed in pri- siastical courts helped to maintain some vate in the fascinating provision in the formal degree of separation between the

Massachusetts Code of 1648 that ‘‘no secular law and the enforcement of Magistrate, Juror, Officer or other man morals. English civil authorities had not shall be bound to inform, present or reveal yet played a substantial role in the moral

any private crime or offence wherein sphere since the church had almost excluthere is no perill or danger to this Colonie, sive jurisdiction over marriage, divorce, or any member thereof, when any neces- illegitimacy, incest, and adultery. The jus-

sarie tye of conscience, grounded on the tices of the peace had some limited

word of God bindes him to secresie.’’31 To involvement in cases of sexual immoralsome extent a sense of the rights and liber- ity, when, for example, they might handle ties of the inhabitants discouraged active a case of bastardy, while the church courts

interference in the private lives of subjects punished the offender for fornication. in the area of moral regulation. More fre- But, in general, adultery and fornication quently such limitations were a conse- were not secular crimes before 1650.3%

quence of law-enforcement practices The regular ecclesiastical courts continrather than of legislative decisions. ued to supervise the sexual morals of the

| The | local English population. Cases of inconenactment of statutes was, of tinence in all its forms were by far the

course, only the first step in the imple- most common presentments before the

mentation of the moral law. In establish- archdeacon’s courts. A recent analysis of

ing an adequate law-enforcement selected English courts in four different

apparatus, colonial officials sought to out- counties from 1590 to 1633 revealed that

distance their English brethren. The Puri- presentments for sexual immorality

tans in particular believed that they could averaged from one to four cases per parish - successfully enforce the moral laws. By annually, with the earlier period showing

their standards, everyone else had failed. the larger number of such indictments.

In other colonies expectations concerning Such prosecutions often constituted more

the implementation of these laws were than 50 percent of the total presentments probably no more ambitious than in for ecclesiastical offenses from a parish.34

England. _ The most important fact about English The framers of the Massachusetts Code ecclesiastical courts from the colonial of 1648 were well aware that law enforce- point of view is that they became unpopu-


David Flaherty , lar and were abolished in the 1640’s. The ginia.”’3” The governor and the Council of

first settlers of America welcomed this State were said to have initially supported abolition because of the activity of these Blair. Yet his plan never went into full courts against religious noncomformity operation and soon became a dead letter.

and their lax enforcement of morals. The By 1691 one of his surrogates had Root and Branch Petition submitted in attempted to set up an ecclesiastical court

December 1640 to the House of Commons and had cited a civil-court clerk to answer blamed the ecclesiastical jurisdiction for allegations. The lieutenant governor sum-

“the great increase and frequency of moned Blair and his associate to apolo-

whoredoms and adulteries, occasioned by gize for this attempt. The records of the the prelates’ corrupt administration of jus- House of Burgesses simply noted that the tice in such cases, who taking upon them legislators decided to proceed no further

the punishment of it, do turn all into against the pair. Virginians were monies for the filling of their purses.’’35 obviously content with their own modest Whatever the justice of these com- secular efforts at the reformation of

plaints, many of the early colonists con- morals, however inadequate these may sidered ecclesiastical courts undesirable have seemed to certain of the clergy.

on these shores, and none were estab- A secular court system structured in a

lished in America. Outside of New Eng- simple, streamlined, and efficient fashion

land, the effective removal of — wasthecolonists’ first line of attack in the

ecclesiastical responsibility for the super- enforcement of morals. There was to be vision of morals was an unintended by- local and swift justice for criminal offendproduct of antipathy to their jurisdiction ers. The hierarchy of courts was similar on other grounds. Secular courts became from colony to colony despite minor difresponsible for the enforcement of morals. ferences in titles and functions. The The Puritans believed that the enforce- courts held by individual magistrates or ment of morals belonged in the hands of _— justices of the peace to dispense speedy

the civil authorities in any event. No justice or bind over an offender to the

colony seems to have anticipated that sec- county court operated at the most imme-

ular courts might not be effective in the diate and local level of a New England

regulation of morals. , town or a Virginia county. Justices of the

A serious attempt in Virginia to estab- peace themselves played a considerable lish a system of ecclesiastical courts illus- role in setting the moral tone of the comtrated their continuing unpopularity in a minity. Their enthusiasm or lack of inter-

colony not notable for intense religious est in the enforcement of morals was a fervor. The Reverend James Blair, who crucial point in the system. Most cases of had come to a parish in Virginia from incontinence were too serious for disposiEngland in 1685, was appointed the tion by a single justice and were held over Bishop of London’s commissary in 1689. to the next regular meeting of a county In 1690 a convention of ministers that met court or its specific criminal arm, someat his request approved a plan to set up times termed the general sessions of the ecclesiastical courts for the reform of — peace. Most criminal cases involving the abuses against the moral law. In the sum- enforcement of morals were disposed of at

mer of 1690 Blair proclaimed his inten- this level of justice. It was unusual for a tion ‘‘to revive and put in execution the criminal prosecution of this sort to reach a

Ecclesiastical laws against all cursers superior court or other appellate court. Swearers and blasphemers, all whore- The few capital offenses against morals mongers fornicators and Adulterers, all were notable exceptions.

drunkards ranters and profaners of the The secular courts and the ecclesiastiLords day... and against all Scandalous cal systems of discipline established by persons, whether of the Clergy or Laity | such groups as the Puritans and Quakers within this dominion and Colony of Vir- should not be confused. In the Congrega-


Law and the Enforcement of Morals in Early America

tional churches ecclesiastical discipline played a role in this matter. Some author-

applied only to testified regenerate ities continued to encourage informers to

members, more easily referred to as full earn fees by reporting offenders.

church members, and, after the Half-Way Churchwardens presented abuses Covenant of 1662, those sons and daugh- against the moral code in Virginia, Mary-

ters of full church members who had land, and New York.3® In Virginia the become covenanted members of the housekeepers in a parish chose a vestry of church. The role of the Congregational twelve leading men, who annually in church was to secure a declaration of association with the minister selected two repentance from the offender before or of the vestrymen to be churchwardens. after his secular conviction. In their total- The latter then made presentments of ity full church members were rarely a moral offenders directly to the civil

majority of the adult population in a New courts, which created a formal tie between

England town. These members could be church and state such as the Puritans punished for the same offense — espe- would never have permitted. The scope

cially when the charge was incontinence included ‘‘persons not coming to Church;

— both in church disciplinary proceed- those who prophane the Sabbath, by ings and before the secular courts. Dual Working, Traveling, Tippling at Ordinprosecution by the church and secular aries, Drunkenness, Swearing, Cursing,

authorities was probably more typical of and all Persons who shall transgress any the early years of settlement, although Penal Laws, made for the Restraint of Vice there are no studies on this subject to date. and Immorality.’’?9 Directives relating to

For those Puritans and Quakers who fornication and adultery made explicit aspired to the higher levels of saintliness, that the churchwardens, with a signifi-

such double jeopardy was at most a minor cant assist from grand jurors, were the priirritant. The Quakers, who soon became a mary authorities charged with reporting - minority in their own colony, organized such transgressions to the secular courts. their membership in local meetings, In 1785 the new overseers of the poor took

monthly gatherings of the individual over this obligation.

meetings in a township, quarterly assemblies of the meetings in a county, and then The Enforcement of Morality a yearly meeting. The close disciplining

of individual Quakers occurred at the There is substantial historical discus-

lower levels of this hierarchy. In the sion of the prevalence of sexual offenses in sphere of personal morals the list of | NewEngland, perhaps because such inforQuaker concerns paralleled those in the mation is so much at odds with the popular secular courts. Whatever the official irrel- conception of the Puritan life-style. Practievance of Puritan or Quaker proceedings cally every scholar who has studied this to the civil court’s activities in a case, the subject has commented on the existence of system of ecclesiastical justice could not widespread sexual irregularities.4° A ranhelp reinforcing the secular moral order dom examination of county court records

in areas where it operated. in any of the New England colonies would The secular authorities generally illustrate this situation. New England legal appointed the traditional English law- machinery prosecuted many breaches of

enforcement officers and charged them the moral laws, but the violations

with varying degrees of responsibility for remained numerous. Legislative represthe apprehension of moral offenders. The sion of sexual misbehavior did not suc-

list in a town or a county included the ceed, despite the continued experiments ,

important offices of constables, sheriffs with types of laws and punishments. Perand grand jurors. Sometimes nightwatch- haps the most startling evidence comes men in towns and such temporary phe- from the disciplinary records of the Connomena as the Massachusetts tythingmen gregational churches, where prosecutions


David Flaherty | for incontinence were routine. The author severe punishment of bastardy.44 The of the leading study of this subject simply offense remained a common one in the concluded that “the suggestion that Puri- county-court records. The governor closed tanism was sexually ascetic... is not sup- the 1696 session of the Maryland legisla-

ported by the evidence.’’*! By the ture by reminding his listeners “‘that the eighteenth century the secular courts making of good lawes was altogether ineftreated cases of fornication and bastardy fectuall unless they were duly put into with considerable leniency and often did Execution. Therefore since most parte of

not prosecute the men involved. the house were Magistrates in their

The situation with respect to the | Severall Countys he Straitly charged them enforcement of morals was not very dif- to put in Execution all the good lawes ferent in Pennsylvania. The Quakers’ against Sabbath-breaking, Prophane Cursapparent goal wasto stamp out breachesof ing and Swearing, Adultery, and fornicathe moral law by strict enforcement. By the tion, etc.”*5 There is no evidence that this beginning of the eighteenth century the or any other colonial governor was ever court records were already full of cases of | very successful in such endeavors.

bastardy, fornication, and adultery.*? For- Despite their good intentions about nication was common in the select Society upholding public morality, the colonists

of Friends: it followed marriages that were duplicating English experience —

breached certain prohibitions in the order immorality had been and continued to be a of most common offenses. Yetthe vigorous significant problem. Sexual offenses were prosecution of Quakers for fornication did exceedingly common in the English eccle-

not improve the situation. “During the siastical courts prior to the Civil War.*¢

colonial period fornication and _ illegiti- Immorality had become such a problem in mate births increased while membership the early Stuart era that in 1650 the Civil

remained stable. By the disownments it War Parliament passed an act making produced, prosecution of fornication deci- adultery and fornication secular offenses.

mated the membership of Friends.”’ Adultery became a capital offense, while In Virginia there were many complaints fornication was punishable with three

that the laws against immorality were not months’ imprisonment. Yet even amidst being enforced. General Assemblies, ves- the revolutionary fervor of the 1650s any stries, and county courts joined the lament initial rigor in the enforcement of this act

at recurrent intervals. Sex offenders were was soon relaxed. As public opinion - among the most common criminal offend- proved increasingly unsympathetic, it ers before the county courts. Although became difficult to obtain convictions, adultery and fornication were punished especially for adultery.47 Cromwell himonly occasionally, ‘‘prosecutions for bas- self failed in his efforts to stimulate the tardy form the most important single act’s enforcement. It lapsed at the Restoragroup of cases which came before the tion, when jurisdiction was restored to the county courts.’’43 Far more women than ecclesiastical courts. By the early eightmen were prosecuted. Commissary Blair eenth century many of the English laws would not have initiated his ill-fated plan regulating morality, especially those for the establishement of ecclesiastical against adultery, had fallen into desuecourts in 1690 had the state of the enforce- ~ tude.48 Thereafter the English abandoned

ment of morals in Virginia been the legal regulation of adultery and

satisfactory. , fornication. In Maryland in the seventeenth century, Yet most colonial authorities did not

calls for the enforcement of the moral laws consider their enactments on moral matbecame a regular feature of the political ters to be mere ideals for the edification of landscape. In 1658 officials, alarmed atthe | the weak. In many ways they never gave up

number of unmarried servants who were the enforcement of morals as a lost cause.

becoming pregnant, instituted more Prosecutions for fornication continued

| 61 | Law and the Enforcement of Morals in Early America

into the late eighteenth century in one leniency in punishments for fornication in form or another. The authorities did not all of the colonies as the seventeenth cen-

abandon the search for better laws that tury progressed bore testimony to the

might actually improve public behavior or increasing tolerance for sexual deviance in

at least reduce the economic burden. As the New World and the slackening com-

Arthur Scott noted in studying moral mitment to the strict enforcement of a offenses in Virginia, ‘‘the great number of moral code. The goals of the colonial crimlaws and amendments which the Assem- inal law were not stated with the sophistibly found it necessary to pass bear elo- cation of a twentieth-century Model Penal

quent testimony to the perplexities Code, but in practice some of the basic

encountered in devising suitable penalties aims were similar. The maintenance of law and an adequate machinery of law enforce- and order in the local setting and the prement.’ As early as 1658 Virginia sought to vention and punishment of acts that hurt encourage the enforcement of laws to sup- other persons were the primary goals of press odious sins by declaring those con- colonial magistrates. Sexual acts that were

victed of adultery or fornication incapable illegal and immoral but not harmful to of being a witness or of holding any public anyone did not have a high priority among office. This applied to “‘persons of what the tasks of most persons charged with law degree or qualitie soever.’’ Later acts enforcement. This did not, however, preagainst vice did not repeat this provision. vent periodic enforcement to reassert the A Virginia enactment in 1727 illustrates moral condemnation of the community. another problem in the enforcement of the One has a sense of an increasing offical moral law. It imposed fines on household- tolerance of private immoralities, if only ers who did not report bastards born in on the ground that little could be done their homes to the authorities. Scott con- about them anyway. Legislatures did not

cluded that the gradual diminution in create a law enforcement apparatus that prosecutions for such moral offenses as could effectively prosecute private adultery and fornication ‘‘was more proba- immoral conduct. In 1731 the monthly bly due to an increasing indifference on meeting of Philadelphia Quakers in voicthe part of the public, or at least to a grow- ing its long-standing suspicions that one ing hopelessness of dealing with such of the brethern was engaging in fornicaoffenses by coercive measures, rather than tion, lamented that since ‘‘such secret to an actual diminution in the frequency of works are often difficult to prove, nothing these moral lapses.’’4° Perhaps there was a more could be done for a long time, but fre-

sense that to stop enforcing the laws on quent admonitions.’ In practice private sexual morality completely would be to illicit behavior was almost untouchable by

countenance such misbehavior. the available means of enforcement. As a Some of the reluctance to enforce certain magistrate in the town of Boston in 1714, statutes and some of the effective limits to Samuel Sewall asked acrowd drinking ina the implementation of legislation concern- tavern on a Saturday evening after the Sabing morals also helped to maintain a liv- bath had begun to leave such public pre-

able situation for the inhabitants of the mises, but he did not intervene when

colonies. The Massachusetts magistrates someone invited the group to move to the seem never to have carried out the explicit privacy of his house.51 The concept of the threat in the fornication law of 1665 to dis- home as a castle provided privacy for indi-

franchise a freeman for fornication.*° Per- viduals. In practice the authorities folsons convicted of capital sexual offenses lowed a policy of noninterference in the such as adultery in early New England did personal and private affairs of others that not suffer capital punishment. The early were not publicly recognized as seriously New England courts demonstrated appro- harmful or that required extensive surveilpriate leniency in fornication cases that lance for prosecution. Public offenses that eventuated in a marriage. The growing challenged the honor and reputation of the


David Flaherty

society demanded prosecution, but unde- labor would be legally responsible for the tected behavior that avoided scandal in the support of the child, however much he community was felt to be less pressing. himself might deny paternity, unless he

Another motive that operated in the had excellent proof. Although laws

selective enforcement of moral legislation against fornication were already in exisby colonial authorities was much lessidea- tence, this was the only punishment to listic than concern for personal privacy. which the male was liable under this stat-

Especially in Virginia, where the trend ute. Gentlemen normally received more

was much in evidence, economic consid- _ lenient treatment at the hands of the law.55

erations came significantly into play in Although South Carolina did not enact prosecutions for sexual offenses. Moral statutes forbidding fornication and aduloffenses hada lowrating among the priori- _ tery, it did formulate an act against bas-

ties of concern of the Virginia gentry tardy in 1703. The sequence of motives in except when their interests were at stake. | the preamble was revealing: ‘‘Whereas This accounts forthe frequency ofbastardy —— great Charges ariseth upon many Places in

prosecutions alone without an accompa- this Province by Reason of Bastardy, nying presentment for fornication oradul- __ besides the great Dishonour to Almighty

tery. In any colony a bastard child God, and the evil Encouragement of lewd represented a significant drain on the _life.”5° The punishments inflicted were

parish poor funds unless the authorities purely of an economic nature. discovered a source of financial support. - The association of law and the regulaThis was particularly true in cases of preg- tion of morals in the hands of the state in nant servants in Virginia. Their terms were America considerably weakened the entire extended to the benefit of the master, and relationship. The abolition of ecclesiasti-

efforts were made to apprehend the cal courts had broader consequences than

responsible male. Out of 490 York County anyone had anticipated as the state took

criminal cases studied by Scott, 73 over from the church almost complete coninvolved servant women having illegiti- trol of the enactment and enforcement of mate children, 8 of men for fornication statutes. An English cleric who had been with servants, 9 adultery cases, and only living in Virginia commented that, as a 35 cases of fornication.5? Virginia did not | consequence of the absence of an ecclesiprosecute the reputed father of a bastard if | astical court there, ‘Vice, Prophaneness, he tendered security to a churchwarden. In and Immorality are not suppressed as

: addition, the law stated that ‘‘a Bastard of a much as might be: The People hate the

Person able to keep it, and not likely to be very name of the Bishop’s Court.’’57 His

chargeable to the Parish, is not within the suggestion that an ecclesiastical court Statute of 18 Eliz. cap. 3.53 Scott con- might perform better struck close to an cluded that in Virginia ‘‘the relentlessness important point. The state lacked the

of the prosecutions for bastardy indicates essential long-term moral commitment to that it was the birth of the child rather than the enforcement of the sexual code that the

the breach of the moral code involved church possessed. The gradual process of which was the real offense in the eyes of secularization of society that began in

the ruling classes.’’54 America in the latter half of the seven-

Such an economic motive also figured teenth century made the infusion of the prominently in cases in other colonies, state with moral fervor less and less likely. since the need to find support for the ille- The secular aims of government took pergitimate child was always a major consid- manent procedence over more noble but

eration. Massachusetts introduced a less relevant ones. bastardy law in 1672 to relieve the eco- Popular attitudes made a substantial

nomic burden of a town where bastards contribution to the failure of the attempt to were born of poverty-stricken persons. In associate law and morals in the interests of future a man accused by the female during high moral standards in society. The toler-


Law and the Enforcement of Morals in Early America

ance of moderate immorality, the lack of ment about his encounter with a local proper zeal for the enforcement of morals, prostitute that was most revealing of local and the opportunities for immorality in a attitudes: ‘“‘She keeps a house of pleasure rural environment constituted elements of and has done so for a good many years past | this picture. The twentieth century has for- in a more decent and reputable manner

gotten that the colonists were pre-Victo- than common, and is Spoke of by everyrian in their attitudes to sexual matters. body in Town in a favourable manner for They did not attempt to hide the reality of one of her Profession ... This place must sexual urges or of nature. The actualities of have arrived to a tollerable degree of mod-

houses of prostitution and sexual lapses ern luxury when houses of that kind were were much in their traditional and current publickly allowed of, and the Manners of experiences.°§ An agricultural society that the People by no means rigid when sub-

was Close to nature and marked by serious jects of that sort become family

violence in many forms did not view the conversation.’’®5

offense of premarital sexual involvement Many colonists were not deeply dis-

or illicit activity generally with much turbed or surprised when someone

alarm. Americans seem to have been infor- infringed on the moral code in sexual mally tolerant of women who gave birth matters, expecially if the offense was forout of wedlock.5? There are innumerable nication or bastardy. Prosecutions for

examples of notable individuals who such offenses were so common that they engaged in illicit sexual activities. Benja- could not long remain shocking to the min Franklin was also afflicted by “that | average citizen. Many residents viewed hard-to-be-governed passion of youth,” the usual offender against the moral code but allowed it to lead him into sexual with a mixture of tolerance, amusement, adventures in both Philadelphia and Lon- _and titillation. Such episodes temporarily don. He sired an illegitimate son who in fueled the local fires of gossip. Although turn imitated his father.©° The heroic sex- the majority of the population formally ual exploits of William Byrd II (1674-1744) discountenanced immorality, the general of Virginia are much better known than moral climate, the prevalence of gaming those of any other colonist because of his | and drinking, for example, created a situ-

explicit shorthand record. His Virginia ation where a person could not do much diary from 1709 to 1712 records his illicit more than discourage sexual vices offiinclinations and attempted seductions.®! cially and in his family. In 1698 the

In London after the death of his wife, Byrd | young minister of a rural Massachusetts

kept a succession of mistresses and town blamed the “prevailing, growing

cavorted with streetwalkers. © evil’ of fornication on parents who

The presence of the well-known madam, allowed their children and servants to

Alice Thomas, in seventeenth-century roam at night and on common induceBoston makes clear that Puritan New Eng- ments: ‘‘Such are, over costly, light land was not immune to the pleasures of garish attire, filthy communications, idlethe flesh.62 In 1712 and 1713 Cotton ness, intemperance, by which the body is Mather sought a “‘list’’ of all whorehouses inflamed, and modesty banished.’’®®

in Boston and a ‘“‘catalogue’”’ of men who The total situation in the colonies was patronized them: ‘‘I am informed of serval of a type to discourage the successful

Houses in this Town, where there are association of law and morality. Inciyoung Women of a very debauched charac- dents of illicit behavior occurred, espe-

ter ...; unto whom there is a very great cially among younger persons and the Resort of young men.”’ His resolutions to lower classes, including servants and extinguish the mischief through his Socie- slaves. Custom permitted courting couties for the Suppression of Disorders do not ples to bundle in some regions. Some

seem to have matured. A British officer colonists blamed the arrival of various

visiting Newport at later date made a com- European immigrant groups in the eight-


David Flaherty Oo eenth century for an increase in vice and economic motive at work in the prosecu-

immorality. The levels of adherence to tion of servants should not be disasceticism of these groups of newcomers counted, since their terms of service were surely differed. In actual fact the flow of extended for such offenses. Masters not

British immigrants was a more constant infrequently seduced their female sersource of moral standards and patterns of vants. While the evidence for the explicit

behavior somewhat at odds with the use of slaves as sexual objects by the

expectations of the founders of the colo- white population is not prominent in the nies. Many colonists themselves held lib- existing records, the possibilities are

eral views with respect to some of life’s fairly evident.7° Slaves were in a permapleasures. Sexual immorality in moderate nently debased condition and lacked subdoses was not the great offense to the res- stantial exposure to the Christian moral

idents of colonial New England that it code. Whites of any class enjoyed some

became for some of their descendants.®7 degree of authority over the slaves by reaA zeal for successful implementation — son of their own color. Younger males of moral legislation was not pervasive in found some black females ready prey for

colonial society. The colonists recog- — their earliest sexual adventures. The _ nized moral standards, just as they were practice of allowing younger slaves to not startled by deviations from the norm. walk about naked, the sexual attractiveThey expected known breaches of the ness of some slave women to the white moral order to be punished, as in the male, and the relatively defenseless posiinevitable situation of a woman who had tion of female slaves contributed to this a child out of wedlock, or soon after her situation. In Charleston whites openly wedding day. But the colonists were not kept slaves as mistresses. The statutory attuned to involving themselves in the responses of some legislatures suggested search for moral offenders. The process that interracial sexual activity was comof informing never attracted popular sup- mon by the eighteenth century. The

port. Virginia hardly encouraged the authorities threatened drastic punishpractice by making the informer pay the ments as a terror tactic to discourage

court costs if the verdict was for the such relationships. In 1715 Maryland defendant.®* In small communities few decided that any free white man or private individuals actively concerned woman who had a child by a Negro themselves in the prosecution of offenses should be reduced to servitude for a against morality. This was a major source seven-year period. White servants had

of frustration to a New England minister their term extended by seven years. Free like Solomon Stoddard, despite his excel- Negroes involved in such episodes with lent grasp of the sociological reasons for whites also were subject to servitude for

this situation.© a seven-year period. Pennsylvania The frequent opportunities for sexual adopted the latter provision in 1726.7! It irregularities helped weaken the impulse is doubtful that such harsh measures

to moral reform. The presence of unmar- were actually implemented.

ried white servants and black slaves in The lack of popular enthusiasm for small communities provided a regular participation in the enforcement of source of, and outlet for, sexual immoral- =morals infected those officially charged

ity. Indentured servants who were not with this task. Governors, reformers, and

free to marry accounted for the bulk of clerical leaders frequently blamed

the incontinence cases that appeared in responsible officials for their unwillingthe Virginia courts. An overwhelming ness to enforce the laws. Since legislators percentage of these white immigrants to were often also justices of the peace in the southern colonies were males, while their home community, such accusations in New England the proportion of male evidenced their own guilty feelings. But

immigrants was about 60 percent. The lack of zeal extended to grand jurors,


Law and the Enforcement of Morals in Early America

petty jurors, churchwardens, constables, families. The tythingman was to be the and deputy sheriffs as well. They exer- universal, all-purpose censor of morals cised a potential veto power over the and to remedy all previous deficiencies

extent to which morals were to be in law enforcement. The system did not

enforced in any locality. In the eight- fail immediately; in fact it began auspieenth century this veto reached heights ciously with the magistrates of some of absurdity when an individual agreed county courts openly welcoming this to pay child support in a bastardy case, needed assistance. In some instances

but a jury refused to convict him of presentments for offenses against the

fornication. moral law dramatically increased for a Indifference, inefficiency, fear, corrup- short period of time. But basically the tion, the burden of office, and an unwil- original system died a gradual death in lingness to prosecute friends contributed response to its unpopularity, in particu-

to the laxity of law enforcement in the lar the unwillingness of neighbors to

area of personal morals.’ There was no undertake such a burdensome and potenprofessional force operating in this area. tially quarrelsome task.74 By the early Agents of the law were satisfied if they eighteenth century at the latest the office were able to maintain elementary law of tythingman was either a dead letter or and order in an unruly society. The rou- had been turned into an informing sys-

tineness of incontinence cases and the tem for liquor offenses. If the Puritans routinized response of the courts in pun- could not enforce the rigors of the moral ishing them did not encourage any colo- law successfully, no other group of colo-

nial official to unusual zeal in the nists could.

prosecution of offenses that did not come

readily to his attention. Even ministers of The thrust of this essay has been to religion were loath to outdistance their demonstrate the relative failure in terms flock in the zealous enforcement of of original expectations of laws concernmorals. Ministers in the predominant ing the enforcement of morals in a setting churches of New England and Virginia, | where law and morals were consciously for example, were employees of their intertwined. The upholding and enforcecongregations. Well-informed commenta- ment of morality by extralegal means was tors in Virginia around 1700 remarked on by contrast relatively successful. The fail-

a minister’s usual subservience to ves- ure of laws and law enforcement did not tries that frequently entered into annual result in promiscuity or a particularly agreements for his services: ‘‘He must low level of morality in the colonies.

have a speciall Care how he preach’d Alternative methods of social control against the Vices that any great Man of existed and have always prevailed in

the Vestry was guilty of; for if he did, he Western society to make up for deficienmight expect a Faction would be made in cies in official legal processes. While this

the Vestry, to be against renewing the study cannot explore the extralegal

Agreement with him for another year.’’7? modes of social control in great detail, The most striking evidence of the fail- several can at least be mentioned. Particure of colonial authorities in the enforce- ularly in the realm of sexual morals, com-

ment of morals occurred in munities developed a_ self-generating

seventeenth-century Massachusetts. It form of control over the behavior of the was fitting in the face of previous failures populace. Small population units living that the Puritans should have made one in relative intimacy and collective isolalast effort to support the moral law by tion from other villages induced confor-

instituting the new office of tythingman mity of behavior in the majority and in the mid-1670s. Each neighborhood in discouraged conscious imitation of each town was to appoint a tythingman deviant behavior. The force of public

to oversee the morals of ten neighboring opinion, the prevailing concept of con-

66 |

David Flaherty

ventional behavior, the threat of becom- with London and its environs in the ing a subject of gossip, the difficulties of eighteenth century. Whatever their status

shielding from neighbors such uncon- as pre-Victorians, most colonists had a ventional conditions as pregnancy out of | sense of modesty and even prudery in wedlock, and continued acceptance of moral matters that helped maintain stanthe sinfulness of immorality all served to dards of behavior. Virginity remained the uphold the moral law much more effec- ideal for unmarried women. Most colotively than secular laws and law enforce- nists avoided illicit sexual activity not ment. Libertinism was not widespread in because it was illegal but because it was

the colonies, especially in comparison sinful.75

Part Three

The Revolution and the New Constitutional Order

The history of formal institutions and Thus the colonies were impelled toward the development of legal doctrines were rebellion and independence, for, as one important elements of the colonial Ameri- member of the House of Lords declared in

can legal heritage. Also central to the a 1775 debate, the Americans proved to be colonial experience, however, was the fully as ‘obstinate, undutiful and ungovpopular attitude toward law — and espe- ernable” then as they had been ‘‘from the

cially toward efforts by the British to beginning.” impose ‘“‘law and order’’ in North In her article on popular uprisings and America. Beginning in the mid-seven- civil authority, the historian Pauline

teenth century, efforts by the English to Maier probes this aspect of colonial legal enforce trade restrictions met with peri- culture and popular behavior. Finding odic outbreaks of mob violence as well as parallels in the history of European mob with formal resistance from the American action, Maier argues that mob force had a legislatures. In the later years of the sev- certain legitimacy, indicating ‘“‘willing-

enteenth century, widespread popular ness among many Americans to act out- | resistance appeared; civil disobedience side the bounds of law.’’ Some analysts and, indeed, what one scholar has termed have contended that mobs reflected the ‘‘a veritable anarchy’’ seemed to prevail. frustrations of angry, dispossessed groups

This crisis passed, but even with the that represented a democratic counter-

return of greater stability in the eight- force to elite rule. In Maier’s view, howeenth century British officials remained ever, the apparently widespread tolerance sensitive to the possibility of popular of mobs was not necessarily ‘‘anti-authoriuprisings. Unwilling to put to too severe a tarian in any general sense.”’

test the loyalty of the colonists, the British The Revolution and the establishment

adopted their policy of “‘salutary neglect,”’ of republican government placed all such

deliberately ignoring evasions of their issues on a new basis, and the Constitutrade laws in order to avert crises. After tional Convention of 1787 introduced 1763 salutary neglect was abandoned as centralized government. The essay by the British determined that they would Harry N. Scheiber concerns the nature of impose their authority in its full measure. the ‘original understanding” of 1787,

67 |


The Revolution and the New Constitutional Order

dealing especially with the character of Sedition Act of 1798 and places the issue the new “federal” structure and its com- in the context of the history of libertarian

patibility with republican ideals. thought. The Federalist era of the 1790s wit-

‘nessed a series of intense political crises Further Reading triggered by the ‘‘centralizing policies” of

Alexander Hamilton and the Federalist Conkin, Paul. Self-Evident Truths:... Party under Washington and John Adams. Origins and Development of the First PrinMany political leaders viewed with deep- ciples of American Government. Bloomingest misgivings the formation of an institu- ton: Indiana University Press, 1974. tionalized opposition party, which came Jensen, Merrill. The Founding of a Nation: in the form of the Jeffersonian Republi- —A History of the American Revolution, 1763cans and whose emergence gave a new 1776. New York: Oxford University Press,

dimension to the working political system 1968.

beyond the formal bounds of the constitu- Maier, Pauline. From Resistance to Revotional order mandated in 1787. As party lution: Colonial Radicals and the Develop-

conflict intensified and grew bitter — ment of American Opposition to Britain, under the pressure of differences over = 1765-1776. New York: Alfred A. Knopf, foreign policy and the threat of war with 1972.

France no less than differences over Mason, Alpheus T. The States Rights

domestic affairs — the Federalists control- Debate: Antifederalism and the Constituling Congress finally resorted to stringent tion. 2d ed. New York: Oxford University

laws to bar “dangerous” aliens from Press, 1972.

immigration and to place strict limits on Smith, James Morton, ed. The Constitudissent. To the hard-line Federalists, dis- _tion. New York: Harper & Row, 1971.

sent and opposition were evidence of trea- Smith, James Morton. Freedom’s Fetters: son and sedition. And like the British in The Alien and Sedition Laws and American the 1760s and 1770s, they decided that Civil Liberties. Ithaca: Cornell University _ the time had come to draw the line — this Press, 1956. time, against what they viewed as slander, Wood, Gordon S. The Creation of the subversion, and treason in the political American Republic, 1776-1787. Chapel Hill: dialogue of the stump and the press. In his University of North Carolina Press, 1969.

essay on liberty and the First Amend- Wright, Benjamin F. Consensus and Con-

ment, Leonard W. Levy reexamines the tinuity, 1776-1787. Boston: Boston Univer-

First Amendment crisis triggered by the sity Press, 1958.

| Pauline Maier : Popular Uprisings and Civil Authority | in Eighteenth-Century America

It is only natural that the riots and civil ried different connotations for the Ameriturbulence of the past decade and a half can revolutionaries than they do today. have awakened a new interest in the his- Not all eighteenth-century mobs simply

tory of American mobs. It should be defied the law: some used extralegal emphasized, however, that scholarly means to implement official demands or

_attention to the subject has roots indepen- to enforce laws not otherwise enforceable, dent of contemporary events and founded others in effect extended the law in urgent

in long-developing historiographical situations beyond its technical limits.

trends. George Rudé’s studies of prein- Since leading eighteenth-century Ameri-

dustrial crowds in France and England, cans had known many occasions on

E.J. Hobsbawm’s discussion of ‘‘archaic’’ which mobs took over the defense of the social movements, and recent works link- public welfare — which was, after all, the ing eighteenth-century American thought stated purpose of government — they with English revolutionary tradition have were less likely to deny popular upheavall, in different ways, inspired a new con- als all legitimacy than are modern leaders.

cern among historians with colonial While not advocating popular uprisings, uprisings.! This discovery of the early they could still grant such incidents an American mob promises to have a signifi- established and necessary role in free cant effect upon historical interpretation. societies, one that made them an integral Particularly affected are the revolutionary and even respected element of the politistruggle and the early decades of the new cal order. These attitudes, and the tradi-

nation, when events often turned upon tion of colonial insurrections on which

well-known popular insurrections. they drew, not only shaped political

Eighteenth-century uprisings were in events of the Revolutionary era, but also some important ways different from those lay behind many laws and civil proceof today — different in themselves, but dures that were framed during the 1780s even more in the political context within and 1790s, some of which still have a which they occurred. As a result they car- place in the American legal system. Reprinted from William and Mary Quarterly, 3d ser. Not all colonial uprisings were identi-

27 (1970), 3-35, by permission. cal in character or significance. Some

69 ,


Pauline Maier

involved no more than disorderly vandal- of 1710, after the governor rejected a petiism or traditional brawls such as those tion from the Boston selectmen calling for

that annually marked Pope’s Day on a temporary embargo on the exportation November 5, particularly in New Eng- of foodstuffs, one heavily laden ship land. Occasional insurrections defied: found its rudder cut away, and fifty men established laws and authorities in the sought to haul another outward-bound name of isolated private interests alone — vessel back to shore. Under similar cir-

a set of Hartford County, Connecicut, cumstances Boston mobs again inter-

landowners arose in 1722, for example, vened to keep foodstuffs in the colony in after a court decision imperiled their par- 1713 and 1729. When there was some ticular land titles. Still others — which doubt a few years later whether or not the are of interest here — took on a broader selectmen had the authority to seize a purpose, and defended the interests of barn lying in the path of a proposed street, their community in general where estab- a group of townsmen, their faces blacklished authorities failed to act.2 This com- ened, leveled the structure, and the road

mon characteristic linked otherwise went through. Houses of ill fame were

diverse rural uprisings in New Jersey and attacked by Boston mobs in 1734, 1737, the Carolinas. The insurrectionists’ pun- and 1771; and in the late 1760s the New ishment of outlaws, their interposition to York Gazette claimed that mobs in Provisecure land titles or prevent abuses at the dence and Newport had taken on responhands of legal officials followed a frustra- sibility for ‘‘disciplining’’ unfaithful tion with established institutions and a husbands. Meanwhile in New London, belief that justice and even security had to. Connecticut, another mob prevented a be imposed by the people directly.3 The radical religious sect, the Rogerenes, from earlier Virginia tobacco insurrection also disturbing normal Sunday services, “a illustrates this common pattern well: Vir- practice they... [had] followed more or ginians began tearing up young tobacco less for many years past; and which all the

plants in 1682 only after Governor laws made in that government, and exeThomas Culpeper forced the quick cuted in the most judicious manner could

adjournment of their assembly, which had not put a stop to.’’> ,

been called to curtail tobacco planting Threats of epidemic inspired particuduring an economic crisis. The insurrec- larly dramatic instances of this commu-

tions in Massachusetts a little over a cen- nity-oriented role of the mob. One tury later represent a variation on this revealing episode occurred in Massachutheme. The insurgents in Worcester, Berk- setts in 1773-74. A smallpox hospital had shire, Hampshire, Middlesex, and Bristol been built on Essex Island near Marble-

counties — often linked together as head ‘‘much against the will of the multi-

members of ‘“‘Shays’s Rebellion’ — forced tude”’ according to John Adams. ‘The the closing of civil courts, which threat- patients were careless, some of them wanened to send a major portion of the local tonly so; and others were suspected of population to debtors’ prison, only until a designing to spread the smallpox in the new legislature could remedy their press- town, which was full of people who had

ing needs.* , not passed through the distemper.” In _ This role of the mob as extralegal arm of §_January 1774 patients from the hospital the community’s interest emerged, too, in who tried to enter the town from unauthrepeated uprisings that occurred within orized landing places were forcefully prethe more densely settled coastal areas. vented from doing so; a hospital boat was The history of Boston, where by the mid- burned; and four men suspected of steal-

eighteenth century “‘public order... pre- ing infected clothes from the hospital vailed to a greater degree than anywhere were tarred and feathered, then carted else in England or America,” is full of from Marblehead to Salem in a long corsuch incidents. During the food shortage —tege. The Marblehead town meeting


Popular Uprisings and Civil Authority

finally won the proprietors’ agreement to the town meeting ruled, and to some shut down the hospital; but after some extent in New York, where aldermen and twenty-two new cases of smallpox broke councilmen were annually elected, this out in the town within a few days “‘appre- was true; yet even in Philadelphia, with

hension became general,’’ and some ‘‘Ruf- its lethargic closed corporation, or fians’’ in disguise hastened the hospital’s Charleston, which lacked municipal insti-

demise by burning the nearly evacuted tutions, authority was normally exerted building. A military watch of forty men by residents who had an immediate sense was needed for several nights to keep the of local sentiment. Provincial govern-

peace in Marblehead.® ments were also for the most part kept

A similar episode occurred in Norfolk, alert to local feelings by their elected Virginia, when a group of wealthy resi- assemblies. Sometimes, of course, uprisdents decided to have their families ino- ings turned against domestic American culated for smallpox. Fears arose that the institutions — as in Pennsylvania in 1764, lesser disease brought on by the inocula- when the “Paxton Boys’’ complained that tions would spread and necessitate a gen- the colony’s Quaker assembly had failed eral inoculation, which would cost ‘“‘more to provide adequately for their defense money than is circulating in Norfolk’ and against the Indians. But uprisings over ruin trade and commerce such that ‘‘the local issues proved extra-institutional in

whole colony would feel the effects.’ character more often than they were anti- , Local magistrates said they could not institutional; they served the community interfere because “the law was silent in where no law existed, or intervened the matter.’’ Public and private meetings beyond what magistrates thought they then sought to negotiate the issue. Despite could do officially to cope with a local

a hard-won agreement, however, the problem. proinoculation faction persisted in its The case was different when imperial original plan. Then finally a mob drove authority was involved. There legal the newly inoculated women and chil- authority emanated from a capital an dren on a five-mile forced march in dark- ocean away, where the colonists had no ness and rain to the common Pest House, integral voice in the formation of policy,

a three-year-old institution designed to where governmental decisions were

isolate seamen and others, particularly based largely upon the reports of “‘king’s

Negroes, infected with smallpox.’ men” and sought above all to promote the These local incidents indicate a wil- king’s interests. When London’s legal lingness among many Americans to act authority and local interest conflicted, outside the bounds of law, but they can- efforts to implement the edicts of royal not be described as antiauthoritarian in officials were often answered by uprisany general sense. Sometimes in fact — as ings, and it was not unusual in these cases

in the Boston bawdy-house riot of 1734, or for local magistrates to participate or the Norfolk smallpox incident — local openly sympathize with the insurgents. magistrates openly countenanced or parti- The colonial response to the White Pines

cipated in the mob’s activities. Far from Acts of 1722 and 1729 is one example. opposing established institutions, many Enforcement of the acts was difficult in supporters of Shays’s Rebellion honored general because ‘‘the various elements of their leaders “‘by no less decisive marks of colonial society... seemed inclined to popular favor than elections to local violate the pine laws — legislatures, lumoffices of trust and authority.’’® It was, bermen, and merchants were against above all, the existence of such elections them, and even the royal governors were that forced local magistrates to reflect divided.’’ At Exeter, New Hampshire, in

community feelings and so prevented 1734 about thirty men prevented royal their becoming the targets of insurrec- officials from putting the king’s broad tions. Certainly in New England, where arrow on some seized boards; efforts to


Pauline Maier enforce the acts in Connecticut during the was a major cause of the famous Liberty 1750s ended after a deputy of the sur- riot at Boston in 1768.1°

veyor-general was thrown in a pond and nearly drowned; five years later logs Like the impressment uprisings, which

seized in Massachusetts and New Hamp- in most instances sought to protect or

shire were either ‘‘rescued”’ or destroyed. ° rescue men from the ‘“‘press,’’ customs

Two other imperial issues that provoked incidents were aimed at impeding the local American uprisings long before customs service in enforcing British laws. 1765 and continued to do so during the Tactics varied, and although incidents

revolutionary period were impressment occurred long before 1764 — in 1719, for

and customs enforcement. example, Caleb Heathcote reported a

As early as 1743 the colonists’ violent “riotous and tumultuous’”’ rescue of opposition to impressment was said to seized claret by Newporters — their freindicate a “Contempt of Government.’’ quency, like those of the impressment

Some captains had been mobbed, the “riots, apparently increased after the Admiralty complained, ‘others empri- Sugar Act was passed and cus-

sioned, and afterwards held to exorbitant toms-enforcement efforts were tightened. Bail, and are now under Prosecutions car- The 1764 rescue of the Rhoda in Rhode ried on by Combination, and by joint Sub- Island preceded a theft in Dighton, Massascription towards the expense.’’ Colonial chusetts, of the cargo from a newly seized governors, despite their offers, furnished vessel, the Polly, by a mob of some forty captains with little real aid either to pro- men with blackened faces. In 1766 again a

cure seamen or ‘even to protect them mob stoned a customs official’s home in from the Rage and Insults of the People.’”’ Falmouth (Portland), Maine, while ‘‘Per-

Two days of severe rioting answered sons unknown and disguised”’ stole sugar -~ Commodore Charles Knowles’s efforts to and rum that had been impounded that sweep Boston harbor for able-bodied men morning. The intimidation of customs in November 1747. Again in 1764 when officials and of the particularly despised Rear Admiral Lord Alexander Colville customs informers also enjoyed a long sent out orders to ‘‘procure”’ men in prin- history. In 1701 the South Carolina attorcipal harbors between Casco Bay and ney general publicly attacked an informer Cape Henlopen, mobs met the ships at ‘“‘and struck him several times, crying out, every turn. When the St. John sent out a this is the Informer, this is he that will

boat to seize a recently impressed deserter ruin the country.’ Similar assaults

from a Newport wharf, a mob protected occurred decades later, in New Haven in him, captured the boat’s officer, and 1766 and 1769, and New London in 1769, hurled stones at the crew; later fifty New- and were then often distinguished by porters joined the colony’s gunner at Fort __ their brutality. In 1771 a Providence tides-

George in opening fire on the king’s ship man, Jesse Saville, was seized, stripped, itself. Under threat to her master the Cha- bound hand and foot, tarred and feathleur was forced to release four fishermen ered, had dirt thrown in his face, then was seized off Long Island, and when that beaten and ‘“‘almost strangled.’’ Even more ship’s captain went ashore at New Yorka _ thorough assaults upon two other Rhode mob seized his boat and burned it in the Island tidesmen followed in July 1770 and Fields. In the spring of 1765 after the |= upon Collector Charles Dudley in April

Maidstone capped a six-month seige of 1771. Finally, customs vessels came

Newport harbor by seizing ‘‘all the Men’’ under attack: the St. John was shelled at out of a brigantine from Africa, a mob of Newport in 1764 where the customs ship about five hundred men similarly seized a Liberty was sunk in 1769 — both episodes ship’s officer and burned one of her boats __ that served as prelude to the destruction

on the common. Impressment also met of the Gaspée outside Providence in mass resistance at Norfolk in 1767 and 1772.11


Popular Uprisings and Civil Authority

Such incidents were not confined to result the acts “‘operated so much against New England. Philadelphia witnessed the convenience and even necessities of some of the most savage attacks, and even the inhabitants,’ Surveyor John Wentthe surveyor of Sassafras and Bohemia in worth explained, that ‘‘it became almost a

Maryland — an office long a sinecure, general interest of the country” to frussince no ships entered or cleared in Sassa- trate the acts’ execution. Impressment fras or Bohemia — met with violence offered a more immediate effect, since the

when he tried to execute his office in ‘press’? could quickly cripple whole

March 1775. After seizing two wagons of towns. Merchants and masters were goods being carried overland from Mary- affected as immediately as seamen: the land toward Duck Creek, Delaware, the targeted port, as Massachusetts’ Governor officer was overpowered by a “‘licentious William Shirley explained in 1747, was mob” that kept shouting ‘Liberty and drained of mariners by both impressment Duck Creek forever’ as it went through itself and the flight of navigation to safer the hours-long rituals of tarring and feath- provinces, driving the wages for any

ering him and threatening his life. And at remaining seamen upward. When the ,

Norfolk, Virginia, in the spring of 1766 an press was of long duration, moreover, or accused customs informer was tarred and when it took place during a normally busy feathered, pelted with stones and rotten season, it could mean serious shortages of eggs, and finally thrown in the sea where food and firewood for winter, and a gen-

he nearly drowned. Even Georgia saw eral attrition of the commercial life that customs violence before independence, sustained all strata of society in trading and one of the rare deaths resulting from a towns. Commerce seemed even more colonial riot occurred there in 1775.1 directly attacked by British trade regula-

White Pines, impressment, and customs tions, particularly by the proliferation of uprisings have attracted historians’ atten- customs procedures in the mid-1760s that tion because they opposed British author- seemed to be in no American’s interest,

ity and so seemed to presage the and by the Sugar Act with its virtual pro-

Revolution. In fact, however, they had hibition of the trade with the foreign West much in common with many exclusively Indies that sustained the economies of local uprisings. In each of the incidents colonies like Rhode Island. As a result violence was directed not so much against even when only a limited contingent of the “rich and powerful’’!? as against men sailors participated in a customs incident, who — as it was said after the Norfolk officials could suspect — as did the depsmallpox incident — ‘‘in every part of uty collector at Philadelphia in 1770 — their conduct... acted very inconsis- that the mass of citizens ‘‘in their Hearts’’

tently as good neighbors or citizens.’’ The approved it.14 _ , ,

effort remained one of safeguarding, not Because the various uprisings dis-

the interests of isolated groups alone, but cussed here grew out of concerns essenthe community’s safety and welfare. The tial to wide sections of the community, White Pines Acts need not have provoked the “‘rioters’? were not necessarily conthis opposition had they applied only to fined to the seamen, servants, Negroes, trees of potential use to the navy, and had and boys generally described as the staple they been framed and executed with con- components of the colonial mob. The

cern for colonial rights. But instead the uprising of Exeter, New Hampshire,

acts reserved to the crown all white-pine townsmen against the king’s surveyor of

trees including those “utterly unfit for the woods in 1754 was organized by a masts, yards, or bowsprits,’’ and pre- member of the prominent Gillman family

vented colonists from using them for who was a mill owner and a militia building materials or lumber exportation officer. Members of the upper classes pareven in regions where white pine consti- ticipated in Norfolk’s smallpox uprising,

tuted the principal forest growth. As a and Cornelius Calvert, who was later

, 74 Pauline Maier

attacked in a related incident, protested council then ordered the gunner at Fort that leading members of the community, George to detain the schooner until the

doctors and magistrates, had posted accused seamen were delivered to the

securities for the good behavior of the sheriff, and ‘““many People went over the “Villains” convicted of mobbing him. Fort to assist the Gunner in the Discharge Captain Jeremiah Morgan complained of his Duty.’”’ Only after this uprising did about the virtually universal participation the ship’s officers surrender the accused of Norfolkers in an impressment incident men.!© Similarly, the 1747 Knowles of 1767, and “‘all the principal Gentlemen impressment riot in Boston and the 1765 in Town” were supposedly present when Maidstone impressment riot in Newport a customs informer was tarred and feath- broke out after the governors’ requests for ered there in 1766. Merchant Benedict the release of impressed seamen had gone Arnold admitted leading a New Haven unanswered, and only after the outbreaks mob against an informer in 1766; New of violence were the governors’ requests -London merchants Joseph Packwood and honored. The crowd that first assembled Nathaniel Shaw commanded the mob that on the night the Liberty was destroyed in first accosted Captain William Reid the Newport also began by demanding the night the Liberty was destroyed at New- allegedly drunken sailors who that afterport in 1769, just as John Brown, a leading noon had abused and shot at a colonial Providence merchant, led that against the captain, Joseph Packwood, so they could Gaspée. Charles Dudley reported in April be bound over to local magistrates for 1771 that the men who beat him in New- prosecution. 17

port ‘‘did not come from the... lowest In circumstances such as these, the

class of Men,” but were ‘‘stiled Merchants ‘“‘mob”’ often appeared only after the legal

and the Masters of their Vessels’; and channels of redress had proved inade-

again in 1775 Robert Stratford Byrne said quate. The main thrust of the colonists’ many of his Maryland and Pennsylvania resistance to the White Pines Acts had attackers were ‘‘from Appearance... Men always been made in their courts and of Property.” It is interesting, too, that legislatures. Violence broke out only in

during Shays’s Rebellion — so often con- local situations where no alternative was sidered a class uprising — ‘“‘men who available. Even the burning of the Gaspée

were of good property and owed not a in June 1772 was a last resort. Three shilling’ were said to be “involved in the months before the incident a group of

train of desperado’s to suppress the prominent Providence citizens com-

courts.’’45 plained about the ship’s wanton severity Opposition to impressment and cus- with all vessels along the coast, and the

toms enforcement in itself was not, more- colony’s governor pressed their case with

over, the only cause of the so-called the fleet’s admiral. The admiral, however, impressment or customs “‘riots.’’ The supported the Gaspée’s commander, Lieucomplete narratives of these incidents tenant William Dudingston; and thereafindicate not only that the crowd acted to ter, the Providence Gazette reported, support local interests, but that it some- | Dudingston became ‘‘more haughty, inso-

times enforced the will of local magis- lent and intolerable,... personally ill , trates by extralegal means. Although treating every master and merchant of the

British officials blamed the St. John inci- vessels he boarded, stealing sheep, hogs,

dent upon that ship’s customs and poultry, etc. from farmers round the bay,

impressment activities, colonists insisted and cutting down their fruit and other that the confrontation began when some trees for firewood.” Redress from London sailors stole a few pigs and chickens from was possible but time-consuming, and in

a local miller and the ship’s crew refused the meantime Rhode Island was

to surrender the thieves to Newport offi- approaching what its governor called “the cials. Two members of the Rhode Island deepest calamity” as supplies of food and

, 79

Popular Uprisings and Civil Authority

fuel were curtailed and prices, especially pointed out, crowds were remarkably sinin Newport, rose steeply. It was signifi- gle-minded and discriminating.?? Targets cant that merchant John Brown finally led were characteristically related to griev-

the Providence “mob” that seized the ances: the Knowles rioters sought only moment in June when the Gaspée ran the release of the impressed men; they set

aground near Warwick, for it was he who free a captured officer when assured he had spearheaded the effort in March 1772 had nothing to do with the press, and to win redress through the normal chan- refrained from burning a boat near Prov-

nels of government.18 ince House for fear the fire would spread.

The Norfolk rioters, driven by fear of There was little that was distinctively smallpox, forcefully isolated the inocuAmerican about the colonial insurrec- lated persons where they would be least tions. The uprisings over grain exporta- dangerous. Even the customs rioters tions during times of dearth, the attacks vented their brutality on customs officers on brothels, press gangs, royal forest offi- and informers alone, and the Shaysite cials, and customsmen all had their “mobs” dispersed after closing the courts

counterparts in seventeenth and eight- which promised most immediately to eenth-century England. Even the Ameri- effect their ruin. So domesticated and

cans’ hatred of the customs establishment controlled was the Boston mob that it mirrored the Englishman’s traditional refused to riot on Saturday and Sunday loathing of excise men. Like the customs- nights, which were considered holy by

men in the colonies, they seemed to New Englanders.?3 descend into localities armed with When colonists compared their mobs

extraordinary prerogative powers. Often, with those in the Mother Country they too, English excisemen were ‘‘thugs and were struck only with the greater degree brutes who beat up their victims without of restraint among Americans. ‘These

compunction or stole or wrecked their People bear no Resemblance to an property’ and against whose extrava- English Mob,” John Jay wrote of the

gances little redress was possible through Shaysites in December 1786, ‘‘they are the law.’9 Charges of an identical charac- more temperate, cool and regular in their

ter were made in the colonies against Conduct — they have hitherto abstained customsmen and naval officials as well, from Plunder, nor have they that I know particularly after 1763 when officers of of committed any outrages but such as the Royal Navy were commissioned as the accomplishment of their Purpose deputy members of the customs service,?° made necessary.” Similar comparisons and a history of such accusations lay were often repeated during the revolubehind many of the best-known water- tionary conflict and were at least parfront insurrections. The Americans’ com- tially grounded in fact. When Londoners plaints took on particular significance set out to “pull down” houses of ill fame

only because in the colonies those offi- in 1688, for example, the affair spread,

cials embodied the authority of a prisons were opened, and disorder ended “foreign”? power. Their arrogance and only when troops were called out. But

arbitrariness helped effect ‘“‘an estrange- when eighteenth-century Bostonians set ment of the Affections of the People from out on the same task, there is no record the Authority under which they act,” and that their destruction extended beyond eventually added an emotional element the bordellos themselves. Even the vioof anger against the Crown to a revolu- lence of the customs riots — which con-

tionary conflict otherwise carried on in trast in that regard to other American the language of law and right.?! incidents — can sometimes be explained The focused character of colonial by the presence of volatile foreign seauprisings also resembled those in Eng- men. The attack on the son of customsland and even France where, Rudé has man John Hatton, who was nearly killed


Pauline Maier

- in a Philadelphia riot, occurred, for focused character of popular uprisings example, when the city was crowded by and also their persistence can be

over a thousand seamen. His attackers explained in part by the character of lawwere apparently Irish crew members of a enforcement procedures. There were no vessel he and his father had tried to seize — professional police forces in the eightoff Cape May, and they were ‘set on,”’ eenth century. Instead the power of govthe Philadelphia collector speculated, by ernment depended traditionally upon

an Irish merchant in Philadelphia to institutions like the “hue and cry,” by

whom the vessel was consigned. One of which the community in general rose to

the most lethal riots in the history of | apprehend felons. In its original medi-

colonial America, in which rioters killed eval form the “‘hue and cry’’ was a form

five people, occurred in a small town of summary justice that resembled modnear Norfolk, Virginia, and was signifi- ern lynch law. More commonly by the cantly perpetrated entirely by British sea- eighteenth century, magistrates turned to men who resisted the local inhibitants’ the posse comitatus, literally the ‘‘power efforts to reinstitute peace.24 During and of the country,’ and in practice all ableimmediately after the Revolutionary War bodied men a sheriff might call upon to

, some incidents occurred in which deaths assist him. Where greater and more

were recorded; but contemporaries felt organized support was needed, magisthese were historical aberrations caused trates could call out the militia.27 Both by the ‘“‘brutalizing” effect of the war the posse and the militia drew upon local itself. “Our citizens, from a habit of put- men, including many of the same perting ... [the British] to death, have recon- sons who made up the mob. This was ciled their minds to the killing of each particularly clear where these traditional other,’ South Carolina Judge Aedanus mechanisms failed to function effec-

Burke explained.?5 tively. At Boston in September 1766 To a large extent the pervasive restraint when customsmen contemplated break-

and virtual absence of bloodshed in ing into the house of merchant Daniel

American incidents can best be under- Malcom to search for contraband goods, stood in terms of social and military cir- Sheriff Stephen Greenleaf threatened to

cumstance. There was no large call for support from members of the very amorphous city in America comparable crowd suspected of an intent to riot; to London, where England’s worst inci- when someone suggested during the dents occurred. More important, the Stamp Act riots that the militia be raised casualties even in eighteenth-century Greenleaf was told it had already risen. British riots were rarely the work of This situation meant that mobs could rioters. No deaths were inflicted by the naturally assume the manner of a lawful Wilkes, anti-Irish, or “No Popery” mobs, institution, acting by habit with relative and only single fatalities resulted from restraint and responsibility. On the other

other upheavals such as the Porteous hand, the militia institutionalized the

riots of 1736. “It was authority rather practice of forcible popular coercion and than the crowd that was conspicuous for so made the formation of extralegal mobs its violence to life and limb”; all 285 more natural that J. R. Western has called casualties of the Gordon riots, for exam- the militia ‘“‘a relic of the bad old days,”

ple, were rioters.2° Since a regular army and hailed its passing as ‘‘a step

was less at the ready for use against colo- towards... bringing civilization and nial mobs, casualty figures for American humanity into our [English] political uprisings were naturally much reduced. life.’’28 To some extent the general tendency These law-enforcement mechanisms toward a discriminating purposefulness left magistrates virtually helpless whenwas shared by mobs throughout Western ever a large segment of the population Europe, but within the British Empire the was immediately involved in the dis-


Popular Uprisings and Civil Authority

order, or when the community had a town or colony condoned an act of mass strong sympathy for the rioters. The Bos- force, problems were raised ‘almost ton militia’s failure to act in the Stamp insoluble without rending the whole fab-

Act riots, which was repeated in nearly ric of English law.’’ Nor was the situation all the North American colonies, recapi- confined to the colonies. After describing

tulated a similar refusal during the England’s institutions for keeping the Knowles riot of 1747.29 If the mob’s sym- peace under the later Stuarts, Max Beloff pathizers were confined to a single local- suggested that no technique for maintain-

ity, the governor could try to call out the ing order was found until nineteenthmilitias of surrounding areas, as Massa- century reformers took on the task of chusetts Governor William Shirley began reshaping urban government. Certainly

to do in 1747, and as, to some extent, by the 1770s no acceptable solution had Governor Francis Bernard attempted after | been found — neither by any colonists, the rescue of the Polly in 1765.3° In the nor ‘‘anyone in London, Paris, or Rome, case of sudden uprisings, however, these either,” as Carl Bridenbaugh has put it. peace-keeping mechanisms were at best To even farsighted contemporaries like

only partially effective since they John Adams the weakness of authority required time to assemble strength, was a fact of the social order that neceswhich often made the effort wholly sarily conditioned the way rulers could

pointless. act. “It is vain to expect or hope to carry When the disorder continued and the on government against the universal bent militia either failed to appear or proved and genius of the people,” he wrote, ‘‘we insufficient, there was, of course, the may whimper and whine as much as we army, which was used periodically in the will, but nature made it impossible when eighteenth century against rioters in Eng- she made man.’’3?

land and Scotland. Even in America The mechanisms of enforcing public peacetime garrisons tended to be placed order were rendered even more fragile where they might serve to maintain law since the difference between legal and and order. But since all Englishmen illegal applications of mass force was dis-

shared a fear of standing armies the tinct in theory, but sometimes indistindeployment of troops had always to be a guishable in practice. The English

sensitive and carefully limited recourse. common law prohibited riot, defined as Military and civil spheres of authority an uprising of three or more persons who

were rigidly separated, as was clear to performed what Blackstone called an

Lord Jeffery Amherst, who refused to use “unlawful act of violence’’ for a private soldiers against antimilitary rioters dur- purpose. If the act was never carried out ing the Seven Years’ War because that or attempted, the offense became unlaw-

function was ‘entirely foreign to their ful assembly; if some effort was made

command and belongs of right to none toward its execution, rout; and if the purbut the civil power.” In fact troops could pose of the uprising was public rather be used against British subjects, as in the than private — tearing down whoresuppression of civil disorder, only upon houses, for example, or destroying all the request of local magistrates. This enclosures rather than just those person-

institutional inhibition carried, if any- ally affecting the insurgents — the

thing, more weight in the colonies. There offense became treason since it constiroyal governors had quickly lost their tuted a usurpation of the king’s function, right to declare martial law without the a “levying war against the King.’ The consent of the provincial councils that precise legal offense lay not so much in were, again, usually filled with local the purpose of the uprising as in its use

men.3+ of force and violence “wherein the Law For all practical purposes, then, when does not allow the Use of such Force.” a large political unit such as an entire Such unlawful assumptions of force were


Pauline Maier

carefully distinguished by commentators Admiralty thought the requirement held upon the common law from other occa- ‘throughout North America.3* With the sions on which the law authorized a use legality of impressment efforts so uncerof force. It was, for example, legal for — tain, especially when opposed by local force to be used by a sheriff, constable, authorities, it was possible to see the “or perhaps even ... a private Person”’ press gangs as “rioters” for trying en who assembled ‘‘a competent Number of —= masse to perpetrate an unlawful act of People, in Order with Force to suppress violence. In that case the local townsmen Rebels, or Enemies, or Rioters’’; for a jus- who opposed them might be considered tice of the peace to raise the posse when lawful defenders of the public welfare, opposed in detaining lands, or for crown acting much as they would in a posse. In

officers to raise ‘‘a Power as may effec- 1770 John Adams cited opposition to tually enable them to over-power any... press gangs who acted without warrants

Resistance” in the execution of the as an example of the lawful use of force,

King’s writs.%3 and when the sloop of war Hornet swept In certain situations these distinctions into Norfolk, Virginia, in September 1767

offered at best a very uncertain guide as with a ‘‘bloody riotous plan ... to

to who did or did not exert force law- impress seamen, without consulting the

| fully. Should a posse employ more force Mayor, or any other magistrate,’ the than was necessary to overcome overt offense was charged to the pressmen. resistance, for example, its members Roused by the watchman, who called out acted illegally and were indictable for a “riot by man of war’s men,” the inhabiriot. And where established officials sup- tants rose to back the magistrates, and

ported both sides in a confrontation, or not only secured the release of the

where the legality of an act that officials impressed men but also imprisoned ten were attempting to enforce was itself dis- members of the press gang. The ship’s

puted, the decision as to who were or captain, on the other hand, condemned

were not rioters seemed to depend upon the townsmen as “Rioters.’’ Ambiguity the observer’s point of view. Impress- was present, too, in Newport’s St. John ment is a good example. The colonists clash, which involved both impressment claimed that impressment was unlawful and criminal action on the part of royal in North America under an act of 1708, seamen and culminated with Newporters while British authorities and some — but firing on the king’s ship. The Privy Coun-

not all — spokesmen for the government cil in England promptly classified the held that the law had lapsed in 1713. The incident as a riot, but the Rhode Island question was settled only in 1775, when _ governor’s report boldly maintained that Parliament finally repealed the ‘Sixth of “the people meant nothing but to assist

Anne.’ Moreover, supposing impress- [the magistrates] in apprehending the ment could indeed be carried on, were Offenders”’ on the vessel, and even sugpress warrants from provincial author- gested that “their Conduct be honored ities still necessary? Royal instructions of | with his Majesty’s royal Approbation.’’>5

1697 had given royal governors the “‘sole The enforcement of the White Pines power of impressing seamen in any of — Acts was similarly open to legal dispute. our plantations in America or in sight of | The acts seemed to violate both the Mas-

them.’’ Admittedly that clause was sachusetts and Connecticut charters; the dropped in 1708, and a subsequent par- meaning of provisions exempting trees liamentary act of 1746, which required growing within townships (act of 1722) the full consent of the governor and and those which were ‘“‘the property of

council before impressment could be car- private persons” (act of 1729) was conried on within their province, applied ~ tested, and royal officials tended to work only to the West Indies. Nonetheless it on the basis of interpretations of the laws seems that in 1764 the Lords of the that Bernhard Knollenberg has called far-


Popular Uprisings and Civil Authority

fetched and, in one case, ‘‘utterly unten- Justice, and the greatest Delinquent feels

able.”’ The Exeter, New Hampshire, it most.’”’ Moreover, upheavals consti“riot” of 1734, for example, answered an tuted only occasional interruptions in attempt of the surveyor to seize boards on well-governed societies. “‘“Good Laws and

the argument that the authorization to good Rulers will always be obey’d and seize logs from allegedly illegally felled respected”; ‘‘the Experience of all Ages

white-pine trees in the act of 1722 proves, that Mankind are much more

included an authorization to seize pro- likely to submit to bad Laws and wicked cessed lumber. As a result, Knollenberg Rulers, than to resist good ones.”’ ‘‘Mobs concluded, although the surveyors’ and Tumults,” it was often said, ‘“‘never reports ‘‘give the impression that the happen but thro’ Oppression and a scanNew Englanders were an utterly lawless dalous Abuse of Power.”’3’

lot,... in many if not most cases they In the hands of Locke such remarks

were standing for what they believed, constituted relatively inert statements of with reason, were their legal and equita- fact. Colonial writers, however, often ble rights in trees growing on their own turned these pronouncements on their

lands.’’36 heads such that observed instances of Occasions open to such conflicting popular disorder became prima facie interpretations were rare. Most often indictments of authority. In 1747, for even those who sympathized with the example, New Jersey land rioters argued mobs’ motives condemned their use of that ‘from their Numbers, Violences, and force as illegal and unjustifiable. That unlawful Actions’ it was to be “‘inferred

ambiguous cases did arise, however, that... they are wronged and oppressed, indicates that legitimacy and _illegiti- or else they would never rebell agt. the

macy, posses and rioters, represented but Laws.” Always, a New York writer said poles of the same spectrum. And where a in 1770, when “the People of any Gov-

mob took upon itself the defense of the ernment’’ become ‘‘turbulent and

community, it benefited from a certain uneasy,” it was above all ‘“‘a certain Sign popular legitimacy even when the strict of Maladministration.’’ Even when dislegality of its action was in doubt, partic- orders were not directly leveled against ularly among a people taught that the government they provided “strong proofs

legitimacy of law itself depended upon that something is much amiss in the its defense of the public welfare. state’’ as William Samuel Johnson put it; Whatever quasi-legal status mobs were that — in Samuel Adam’s words — the

accorded by local communities was rein- “wheels of good government’’ were forced, moreover, by formal political ‘somewhat clogged.’ Americans who thought. “Riots and rebellions’? were used this argument against Britain in the often calmly accepted as a constant and 1760s continued to depend upon it two

even necessary element of free govern- decades later when they reacted to ment. This acceptance depended, how- Shays’s Rebellion by seeking out the ever, upon certain essential assumptions public ‘“‘Disease” in their own indepenabout popular uprisings. With words that dent governments that was indicated by

could be drawn almost verbatim from the ‘‘Spirit of Licentiousness’’ in

John Locke or any other English author of Massachusetts.38

similar convictions, colonial writers Popular turbulence seemed to follow

posited a continuing moderation and so naturally from inadequacies of governpurposefulness on the part of the mob. ment that uprisings were often described ‘Tho’ innocent Persons may sometimes with similes from the physical world. In suffer in popular Tumults,’’ observed a 1770 John Adams said that there were 1768 writer in the New York Journal, ‘“Church-quakes and state-quakes in the ‘vet the general Resentment of the Peo- moral and political world, as well as ple is principally directed according to earthquakes, storms and tempests in the

80 |

Pauline Maier , oo

physical.”” Two years earlier a writer in tion’ and generally provided ‘‘a medethe New York Journal likened popular — cine necessary for the sound health of tumults to ‘‘Thunder Gusts’’ which government.” This meant that an aroused “commonly do more Good than Harm.’’ people had a role not only in extreme sitThomas Jefferson continued the imagery uations, where revolution was requisite, in the 1780s particularly with his famous but in the normal course of free governstatement that he liked ‘‘a little rebellion ment. For that reason members of the now and then” for it was “like a storm in House of Lords could seriously argue — the atmosphere.’”’ It was, moreover, as A. J. P. Taylor has pointed out — that because of the “imperfection of all things “rioting is an essential part of our constiin this world,” including government, tution”’; for that reason, too, even Massathat Adams found it ‘“‘vain to seek a gov- chusetts’s conservative Lieutenant ernment in all points free from a possibil- Governor Thomas Hutchinson could ity of civil wars, tumults and seditions.”’ remark in 1768 that ‘‘mobs a sort of them That was “a blessing denied to this life at least are constitutional.’’41

and preserved to complete the felicity of

the next.’’39 | | 8 It was, finally, the interaction of this

If popular uprisings occurred ‘‘in all constitutional role of the mob with the , governments at all times,’ they were written law that makes the story of eightnonetheless most able to break out in free eenth-century popular uprisings com-

governments. Tyrants imposed order and plexity itself.42 It mobs were appreciated submission upon their subjects by force, because they provided a check on power, thus dividing society, as Jefferson said, it was always understood that, insofar as into wolves and sheep. Only under free upheavals threatened “running to such

governments were the people ‘“‘nervous,”’ excesses, as will overturn the whole sysspirited, jealous of their rights, ready to tem of government,” ‘“‘strong discourage-

react against unjust provocations; and ments” had to be provided against them. this being the case, popular disorders For eighteenth-century Americans, like could be interpreted as ““Symptoms of a the English writers they admired, liberty strong and healthy Constitution” even §demanded the rule of law. In extreme sitwhile they indicated some lesser short- uations where the rulers had clearly cho-

coming in administration. It would be sen arbitrary power over the limits of

futile, Josiah Quincy, Jr., said in 1770, to law, men like John Adams could prefer expect ‘‘that pacific, timid, obsequious, — the risk of anarchy to continued submis-

and servile temper, so predominant in sion because ‘‘anarchy can never last

more despotic governments”’ from those long, and tyranny may be perpetual,” but who lived under free British institutions. only when ‘‘there was any hope that the

From ‘‘our happy constitution,’ he fair order of liberty and a free constitu-

claimed, there resulted as “very natural tion would arise out of it.’’ This desire to Effects’’ an ‘‘impatience of injuries, and a maintain the orderly rule of law led legis-

strong resentment of insults.’”’4° : latures in England and the colonies to

This popular impatience constituted an pass antiriot statutes and to make strong essential force in the maintenance of free efforts — in the words of a 1753 Massainstitutions. ‘“‘What country can preserve chusetts law — to discountenance “a

it’s [sic] liberties if their rulers are not mobbish temper and spirit in ... the

warned from time to time that their peo- inhabitants” that would oppose “all govple preserve the spirit of resistance?”’ Jef- ernment and order.’’43 |

ferson asked in 1787. Occasional The problem of limiting mass violence insurrections were thus ‘an evil ... was dealt with most intensely over a susproductive of good’: even those founded tained period by the American revolu-

on popular error tended to hold rulers tionary leadership, which has perhaps “to the true principles of their institu- suffered most from historians’ earlier

| 81

, _ Popular Uprisings and Civil Authority inattention to the history of colonial been repeated during the tea resistance, uprisings. So long as it could be main- or in 1774 when Massachusetts mandatained — as it was only fifteen years ago mus councillors were forced to resign.

— that political mobs were “rare or From the first appearance of an organunknown in America” before the 1760s, ized resistance movement in 1765, more-

the revolutionaries were implicitly cre- over, efforts were made to support the dited with their creation. American patri- legal magistrates such that, as John ots, Charles McLean Andrews wrote, Adams said in 1774, government would

were often “lawless men who were noth- have ‘“‘as much vigor then as ever” except

ing more than agitators and dema- where its authority was specifically

gogues’ and who attracted a following under dispute. This concern for the from the riffraff of colonial society. It maintenance of order and the general now seems Clear that the mob drew on all framework of law explains why the

elements of the population. More impor- American Revolution was largely free tant, the revolutionary leaders had no from the ‘‘universal tumults and all the need to create mob support. Instead they irregularities and violence of mobbish

were forced to. work with a “permanent factions [that] naturally arise when legal entity,’ a traditional crowd that exerted authority ceases.” It explains, too, why itself before, after, and even during the old revolutionaries like Samuel Adams or

revolutionary struggle over issues unre- Christopher Gadsden disapproved of lated to the conflict with Britain and that, those popular conventions and comas Hobsbawm has noted, characteristi- mittes that persisted after regular indecally aided the revolutionary cause in the pendent state governments were

opening phases of conflict but was hard established in the 1770s. ‘“‘Decency and

to discipline thereafter.44 Respect [are] due to Constitutional In focusing popular exuberance the Authority,’ Samuel Adams said in 1784,

American leaders could work with long- ‘“‘and those Men, who under any Pretence established tendencies in the mob toward or by any Means whatever, would lessen

purposefulness and responsibility. In the Weight of Government lawfully exerdoing so they could, moreover, draw cised must be Enemies to our happy Revheavily upon the guidelines for direct | olution and the Common Liberty.’*¢ action that had been defined by English In normal circumstances the “strong radical writers since the seventeenth cen- discouragements” to dangerous disorder tury. Extralegal acticn was justified only were provided by established legislawhen all established avenues to redress tures. The measures enacted by them to had failed. It could not answer casual deal with insurrections were shaped by errors or private failings on the part of the eighteenth-century understanding of the magistrates, but had to await funda- © civil uprisings. Since turbulence indimental public abuses so egregious that cated above all some shortcoming in gov-

the “whole people” turned against their ernment, it was never to be met by

rulers. Even then, it was held, opposition increasing the authorities’ power of suphad to be measured so that no more force — pression. The ‘“‘weakness of authority”

was exerted than was necessary for the that was a function of its dependence public good. Following these principles upon popular support appeared to concolonial leaders sought by careful organi- temporary Americans as a continuing vir-

zation to avoid the excesses that first tue of British institutions, as one reason greeted the Stamp Act. Hutchinson’s why rulers could not simply dictate to query after a crowd in Connecticut had their subjects and why Britain had for so forced the resignation of stampman Jared — long been hailed as one of the freest Ingersoll — whether ‘‘such a public regu- nations in Europe. It was ‘“‘far less dan-

lar assembly can be called a mob” — gerous to the Freedom of a State’ to could with equal appropriateness have allow “the laws to be trampled upon, by

82 ,

Pauline Maier _

the licence among the rabble ... than to In one important respect, however, the dispence with their force by an act of English Riot Act was reformed. Each power.’ Insurrections were to be colonial riot law, except that of Connectianswered by reform, by attacking the cut, was enacted for only one to three ‘“Disease’> — to use John Jay’s term of years, whereas the British law was per-

1786 — that lay behind them rather than petual. By this provision colonial legisla-

by suppressing its “Symptoms.” And tors avoided the shortcoming which, it

ultimately, as William Samuel Johnson was said, was ‘‘more likely to introduce observed in 1768, ‘‘the only effectual way arbitrary Power than even an Army to prevent them is to govern with wis- itself,’’ because a perpetual riot act meant

dom, justice, and moderation.’’47 that ‘‘in all future time’’ by ‘“‘reading a

In immediate crises, however, legisla- Proclamation” the crown had the power

tures in both England and America “of hanging up their Subject wholesale, resorted to special legislation that sup- or of picking out Those, to whom they plemented the common law prohibition have the greatest Dislike.” If the death of riot. The English Riot Act of 1714 was penalty was removed, the danger was

passed when disorder threatened to less. When, therefore, riot acts without disrupt the accession of George I; a Con- limit of time were finally enacted — as necticut act of 1722 followed a rash of Connecticut had done in 1722, Massaincidents over land titles in Hartford chusetts in 1786, New Jersey in 1797 — County; the Massachusetts act of 1751 the punishments were considerably answered ‘‘several tumultuous assemb- milder, providing, for example, for , lies’’ over the currency issue and another imprisonment not exceeding six months

of 1786 was enacted at the time of in Connecticut, one year in MassachuShays’s Rebellion. The New Jersey legis- setts, and three years in New Jersey.°°

lature passed an act in 1747 during that Riot legislation, it is true, was not the colony’s protracted land riots; Pennsyl- only recourse against insurgents, who vania’s Riot Act of 1764 was inspired by throughout the eighteenth century could the Paxton Boys; North Carolina’s of 1771 also be prosecuted for treason. The coloby the Regulators; New York’s of 1774 by nial and state riot acts suggest, nonethethe ‘land wars” in Charlotte and Albany less, that American legislators recognized Counties.*8 Always the acts specified that the participants in civil insurrections as the magistrates were to depend upon the guilty of a crime peculiarly complicated posse in enforcing their provisions, and because it had social benefits as well as

in North Carolina on the militia as well. damages. To some degree, it appears, They differed over the number of people they shared the idea expressed well by who had to remain “unlawfully, rio- Jefferson in 1787 that “honest republican

tously, and tumultuously assembled governors” should be ‘‘so mild in their

together, to the Disturbance of the Pub- punishments of rebellions, as not to dislick Peace” for one hour after the reading courage them too much.’’5! Even in coun-

of a prescribed riot proclamation before tering riots the legislators seemed as

becoming judicable under the act. Some intent upon preventing any perversion of colonies specified lesser punishments the forces of law and order by established

, than the death penalty provided for in authorities as with chastising the insur-

the English act, but the American statutes gents. Reform of the English Riot Act were not in general more “‘liberal’’ than thus paralleled the abolition of constituthe British. Two of them so violated ele- tent treasons — a traditional recourse mentary judicial rights that they were against enemies of the crown — in Amersubsequently condemned — North Caro- ican state treason acts of the revolutionlina’s by Britain, and New York’s act of ary period and finally in Article III of the

1774 by a later, revolutionary, state federal Constitution.5? From the same

legislature.*9 preoccupation, too, sprang the limita-


Popular Uprisings and Civil Authority

tions placed upon the regular army pro- rule of law had to be maintained, yet vided for in the Constitution in part to complete order was neither expected nor assure the continuation of republican even desired when it could be purchased, government guaranteed to the states by it seemed, only at the cost of forcefully Article IV, section 4. Just as the riot acts suppressing the spirit of a free people. were for so long limited in duration, The constant possibility of insurrection appropriations for the army were never to — as institutionalized in the militia — »xxtend beyond two years (Article I, sec- was to remain an element of the United ion 8, clause 12), and the army could be States Constitution, just as it had played used within a state against domestic vio- an essential role in Great Britain’s.

lence only after application by the legis- This readiness to accept some degree lature or governor, if the legislature of tumultuousness depended to a large could not be convened (Article IV, sec- degree upon the lawmakers’ own experi-

tion 4). ence with insurrections in the eightA continuing desire to control author- eenth century, when ‘‘disorder’ was ity through popular action also underlay seldom anarchic and ‘‘rioters’’ often the declaration in the Second Amend- acted to defend law and justice rather

ment that ‘‘a well regulated Militia being than to oppose them. In the years after necessary to the security of a free State,”’ independence this toleration declined, in

citizens were assured the “right ... to part because mass action took on new keep and bear Arms.” The militia was dimensions. Nineteenth-century mobs meant above all “‘to prevent the establish- often resembled in outward form those of ment of a standing army, the bane of lib- the previous century, but a new violence erty”; and the right to bear arms — taken was added. Moreover, the literal assump-

in part from the English Bill of Rights of tion cf popular rule in the years after 1689 — was considered a standing threat Lexington taught many thoughtful revoto would-be tyrants. It embodied ‘‘a pub- lutionary partisans what was for them as

lic allowance, under due restrictions, of unexpected lesson — that the people the natural right of resistance and self were “as capable of despotism as any

preservation, when the sanctions of soci- prince,” that ‘‘public liberty was no guar-

ety and laws are found insufficent to antee after all of private liberty.’’5+ With restrain the violence of oppression.’’ And home rule secured, attention focused on the basis of their eighteenth-century more exclusively upon minority rights, experience, Americans could consider which mob action had always to some that right to be “‘perfectly harmless ... If extent imperiled. And the danger that the government be equitable; if it be rea- uprisings carried for individual freedom sonable in its exactions; if proper atten- became ever more egregious as mobs tion be paid to the education of children shed their former restraint and burned

in knowledge, and religion,” Timothy Catholic convents, attacked nativist

Dwight declared ‘“‘few men will be dis- speakers, lynched Mormons, or destroyed

posed to use arms, unless for their the presses and threatened the lives of

amusement, and for the defence of them- abolitionists.

selves and their country.’’>4 Ultimately, however, changing attiThe need felt to continue the eight- tudes toward popular uprisings turned

eenth-century militia as a counterweight upon fundamental transformations in the to government and the efforts to outlaw political perspective of Americans after rioting and to provide for the use of a 1776. Throughout the eighteenth century standing army against domestic insurrec- political institutions had been viewed as

tions under carefully defined circum- in a constant evolution: the colonies’ stances together illustrate the complex relationship with Britain and with each attitude toward peacekeeping that pre- other, even the balance of power within vailed among the nation’s founders. The the governments of various colonies,

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Pauline Maier | oe

remained unsettled. Under such circum- the Americans’ earlier toleration of the

stances the imputation of governmental mob were corroded in republican

shortcoming that uprisings carried could §$America. Old and new attitudes coexeasily be accepted and absorbed. But __ isted in the 1780s and even later. But the after independence, when the form and appropriateness of popular uprisings in

conduct of the Americans’ governments the United States became increasingly in were under their exclusive control, and doubt after the federal Constitution came when those governments represented, to be seen as the final product of longmoreover, an experiment in republican- term institutional experimentation, ‘‘a ism on which depended their own happi- |§ momentous contribution to the history of

ness and ‘‘that of generations unborn,” politics’’ that rendered even that most Americans became less ready to endure glorious exertion of popular force, revo-

domestic turbulence or accept its disturb- lution itself, an obsolete resort for ing implications. Some continued to Americans.*° argue that ‘‘distrust and dissatisfaction”’ Yet this change must not be viewed on the part of the multitude were exclusively as a product of America’s dis“always the consequence of tyranny or tinctive revolutionary achievement. J.H. corruption.’’ Others, however, began to Plumb has pointed out that a century ear-

see domestic turbulence not as indict- lier, when England passed beyond her

ments but as insults to government that revolutionary era and progressed toward _ were likely to discredit American repub- political ‘‘stability,’’ radical ideology

licanism in the eyes of European with its talk of resistance and revolution

observers. ‘“‘Mobs are a reproach to Free was gradually left behind. A commitment

Governments,’’ where all grievances to peace and permanence emerged from

could .be legally redressed through the decades of fundamental change. In courts or the ballot box, it was argued in America as in England this stability 1783. They originated there ‘‘not in demanded that operative sovereignty,

Oppression, but in Licentiousness,’ an including the right finally to decide what “ungovernable spirit’? among the people. was and was not in the community’s Under republican governments even that interest, and which laws were and were distrust of power colonists had found so not constitutional, be entrusted to estabnecessary for liberty, and which upris- lish governmental institutions. The result ings. seemed to manifest, could appear was to minimize the role of the people at outmoded. “‘There is some consistency in large, who had been the ultimate arbiters

being jealous of power in the hands of of those questions in English and Amerithose who assume it by birth... and over can revolutionary thought. Even law whom we have no control was the enforcement was to become the task pri-

case with the Crown of England over marily of professional agencies. As a

America,” another writer suggested. ““But result, in time all popular unheavals to be jealous of those whom we chuse, alike became manacing efforts to “‘pluck the instant we have chosen them” was up law and justice by the roots,” and riot absurd: perhaps in the transition from itself gradually became defined as a purmonarchy to republic Americans had poseless act of anarchy, “‘a blind and mis“bastardized”’ their ideas by placing jea- guided outburst of popular fury,’ of lousy where confidence was more appro- ‘undirected violence with no articulated priate.>5 In short, the assumptions behind goals.’’57

Harry N. Scheiber | 7 | a Federalism and the Constitution: The Original Understanding

“The result of the deliberations of all ever, may serve to obscure some of the collective bodies,’’ wrote Alexander basic elements of the founders’ original

Hamilton in The Federalist, ‘‘must neces- understanding. What follows here is an sarily be a compound as well of the errors effort to reconstruct that understanding, and prejudices, as of the good sense and concentrating attention not on the motivawisdom, of the individuals of whom they tions of bargaining and the interplay of

are composed.’ The Constitution, he interests, but rather upon the principal admitted, was no exception: it was “‘nece- issues of federalism as embodied in the sarily ... acompromise of [thirteen] dis- Constitution and debated at the time.

similar interests and inclinations.’’! Historians’ extensive research on the The Great Purposes of Constitutional Convention’s inside his- Government

tory” has suggested no reason to dispute | :

Hamilton’s characterization of what hap- The great purposes of a national govpened behind closed doors at Philadel- ernment were placed before the convenphia in 1787. These historical studies tion as early as May 31, only a few days remind us that while the delegates inno- after the first meeting, by Edmund Ranvated brilliantly in political theory, they dolph of Virginia. He proposed, first, that also were political men in a relationship the prospective national legislature be

of barter, bargain, threat, and coun- empowered ‘‘to enjoy the legislative

terthreat. The written records that survive rights vested in Congress by the confeder-

of the convention’s deliberations, the pri- ation; and moreover to legislate in all vate correspondence of delegates, and the cases, to which the separate States are ratification debates in the states all offer incompetent.” This was accepted by a indications of how the pursuit of special vote of nine to zero. Also accepted withinterests helped shape the Constitution. out significant dissent was a further pro-

Undue fascination with the intrigues posal by Randolph that the national

and compromises of the convention, how- legislature enjoy full authority to act in all

| cases “in which the harmony of the

This article is published for the first time in this United States may be interrupted by the

volume. , exercise of individual legislation’’ of the 85


Harry N. Scheiber

states authority as well ‘‘to negative all upon voluntary cooperation by the states, laws passed by the several States contra- and yet in practice one state after another

vening... the articles of union or any had turned its back on congressional

treaty under the Union.’’3 requests for funds. Paralysis of govern-

Such ideas bespoke a great chasm ment had been the result: indeed, by 1786

between the consensus of the nine delega- Congress often lacked even nine state del-

tions represented in May and the ideas egations, the minimum necessary to conthat were popularly shared in the nation duct its business. There was no national at large. For it was widely believed that control over representation in Congress the states were the only legitimate reposi- itself: the states sent or recalled their reptories of supreme power. The nation was resentatives at will. “In 1775 there was still lively with memories of rhetoric in more patriotism in a village than there is Parliament about the ‘‘harmony”’ of the now in the thirteen States,’’ David Ramsey Empire, employed to justify incursions on complained in early 1786. In a poignant the liberties of the colonials; and conflict- appeal to the states to send representa-

ing concepts of what the colonial legisla- tives so that Congress could act, he

tures legitimately were ‘“‘competent”’ to do warned that “‘the remissness of the States

| had precipitated the taking up of arms. ... naturally tends to annihilate our ConRandolph’s proposals and the ensuing federation.”® Thus had occurred what debate in the convention’s early phase Alexander Hamilton later called ‘‘almost ‘were dramatic indications, as one histo- the last stage of national humiliation.” rian has written, that “‘the delegates spoke The ambassadors of the nation abroad, he and acted as if the question before them wrote, “‘are the mere pageants of a minic

was what kind of national government sovereignty... We have neither troops

would be created.” Yet the real issue out- nor treasury nor government.’’”

side the closed doors of the meeting and, Gradually the states had drifted apart, ultimately, inside as well “was whether so that definition of national purposes there would be a national government — even on theoretical terms became nearly

and therefore a nation — at all.’’ impossible. One state levied tariffs against One cannot understand the compro- another; inspection laws were employed mises and bargains that went into the _ to discriminate against products of other final drafts of the Constitution without states; and there was a prolonged struggle asking first why the delegates were so throughout the 1780s over the question of receptive to Randolph’s thoroughgoing how disputed western territories of the

centralism. The answer lies simply in various states would be managed and

this: they were willing to confront an —_ governed. Negotiations with Great Britain inevitably powerful opposition to ratifica- toward a final settlement of the Revolution based on the popular fear of centra- tion were nearly impossible; the credit of

lized government, even at the risk of the government was practically nil; and losing all, precisely because they thought _ the disintegration of even the formalities all had been nearly lost already. National of union was a possibility. For the most government under the Articles of Confed- part, the men who gathered at Philadel-

eration, they thought, was a nullity, phia in 1787 shared a deep concern for

incapable of pursuing the great purposes what they saw as a nearly fatal loss of

of nationhood.5 | national prestige and national power. Under the Articles, each state had They viewed continual disunity as intol-

retained ‘its sovereignty, freedom, and _ erable, not only because of its unfavorable independence.”’ Congress had been dele- impact upon commercial interests but gated the authority essential to national also because it stripped the nation of the government, but not the means by which __ instruments vital to asserting itself in the to exercise power. The revenues of the arena of world politics.2 Thus Gouvernor central government depended entirely Morris struck a responsive chord when he

, 87 Federalism and the Constitution

objected that his colleagues appeared to ous: not only did violent settlement of

give their exclusive attention in the political disputes reveal the internal

debates to considerations of states’ rights weakness of the states, but it also threat-

and of individual rights. He urged the ened the ability of the states collectively need to consider ‘‘the aggregate interest of to assert the national interest, the ‘‘dignity the whole,” to build a government cap- and splendor of the American Empire’”’ in able of “supporting the dignity and splen- the arena of world affairs.

dor of the American Empire.’’?

To those who defended the status quo The “Compound Principle” and who later took up the Antifederalist of American Federalism cause against ratification of the Constitu-

tion, such language smacked of autocratic Some delegates to the convention were beliefs. The Antifederalists asserted that persuaded that the only viable solution the splendor of the American nation was abolition of the states. Thus George

depended instead on state sovereignty: for Read of Delaware asserted that if the states on the control by each state electorate of were to continue as political entities, jeaits own government, on the ability of each lousies among them inevitably would

distinct people within the union to undermine any central government;

defend its own liberties through the therefore, he contended, the states ‘‘must

instrumentality of government close at be done away with.” Butler of South Caro-

hand, rested the success of America’s lina was similarly ‘‘content’’ with the

experiment in republicanism. As Luther prospect of abolishing state legislatures Martin contended in the convention, the “and becoming one Nation instead of a

rights of the people were ‘‘already secured confederation of Republics.” Predictably by their guardians, the state governments. enough Alexander Hamilton stood with

The general government is therefore this group: he viewed the states as unimintended only to protect and guard the portant ‘‘for any of the great purposes of

rights of states as states.’ 1° commerce, revenue, or agriculture.’’

In sharp contrast to this view, most of James Madison — whose ambiguous the framers of the Constitution consis- views of states’ rights would become for tently denied that the states had demon- historians one of the great perplexities of strated their ability to protect the rights this period — said on June 21 that he and happiness of free men. The ills that believed no fundamental liberties would beset America, as Madison averred, be lost if the States were abolished or died included not only ‘‘a constant tendency in a natural death. At the very least, he

the States to encroach on the federal wanted the national legislature to be

authority [and] to violate national Trea- vested with absolute power to veto state

ties,’ but also a pattern of manifest legislation. 1%

infringement of “‘the rights and interests Thus the first great issue before the conof each other’ and oppression of ‘“‘the vention, inclined as it was to accept Ranweaker party within their respective juris- dolph’s broad principles, was whether or dictions.”11 Because Madison expressed not to construct a government in which the sense of the convention, the delegates the states would continue to function. agreed that some of their main concerns (This issue was even more fundamental must be to assure more effectual govern- than the much-remarked debate over ment, “the security of private rights, and whether the national government’s laws the steady dispensation of justice.’’!? should operate ‘‘directly’’ on individuals They deplored the tendency in the states or should be enforced instead through the to resort to violence — indeed, the mem- states and by coercing state governments

ory of Shays’s Rebellion, the previous that refused to collaborate with the

year, was still vivid in their minds. They national government.) The decision of the viewed such instability as doubly danger- convention was finally to adopt a “com-

88 Harry N. Scheiber , | pound” principle of government without truth ‘‘a contest for power, not for libprecedent in the annals of ancient or mod- erty.’’!© He was correct, of course: the realern history — a system that we have come ities of power did prevail in this case, for

to call “federal,” in which the national if a compromise on representation had government (as Morris said) has power to failed the convention would have been exert “compleat and compulsive opera- deadlocked. The compromise also repretion”’ upon individual citizens so farasits | sented a theoretical commitment to the allocated sphere of authority was con- precept that ‘“‘the States have their intercerned, but in which the states could exert ests as such,” so that they must be given sovereign powers in the sphere marked _ the power to defend their interests from out for them. Such a concept, as Madison within the very core of the national govlater wrote, was then ‘‘a novelty and a ernment’s structure. As one of the men

compound”’; indeed the convention who framed the Great Compromise

lacked for ‘‘technical terms or phrases asserted, the effect of the dualistic repre-

appropriate toit.”34 sentation in Congress, with state equality Here, then, was ‘‘a system hitherto in the upper house, was “‘to make the genunknown,” as James Wilson declared — a eral government partly federal [that is,

plan for ‘“‘a perfect confederation of inde- | confederative] and partly national.’’!” pendent states.’’!5> This compound system In a sense, every succeeding decision of of government was founded on two prin- the convention flowed from this decision

cipal features. The first was structural: it on representation. For instance, as the involved ‘‘engrafting’’ the system of delegates elaborated the structure of the national government onto the existing national government, they also left to the system of states by giving the states as states major powers in controlling the such a direct representation in Congress franchise in the election of national and by leaving with the states major officers. Furthermore, the president was

powers in controlling the process of elec- to be named by the electoral college, with tions. The second feature was operational: a significant weighting of the scales in it involved a formal division of powers favor of states’ rights, so that it was possibetween the states and the national gov- ble for a minority of the national populaernment, with government at both levels tion to elect a president.!® operating on individual citizens in pur- The other main feature of the Constitu-

, suit of the common interest. rane tion that lent to the new government its

The structural features were the first to “compound” character was the division be settled by the Convention. Once it was of formal authority between the states and agreed (informally at least) that the states the national government. ‘‘A general prin-

~ would not be abolished, it was decided to ciple readily occurred,” James Wilson create a national congress composed of _fIater said, ‘‘that whatever object was con| two houses, with representation in each to fined in its nature and operation to a par-

be based on different principles. In the ticular State ought to be subject to the Senate, the states were to be represented separate government of the States; but on an equal basis — this, the product of whatever in its nature and operation

the so-called Great Compromise, when extended beyond a particular State, ought representatives of the large states backed to be comprehended within the federal down and accepted what Madison and jurisdiction.‘‘19 Here, in more elaborate _ others had previously regarded as a prin- language, was the essence of Randolph’s ciple that could not be squared with original proposal that Congress should be republican ideology. With characteristic vested with authority in all matters to bluntness, Alexander Hamilton said that which the states individually were ‘not the great debate over representation in the competent”; here one can find, too, a - Senate, though interlaced with the rheto- problem bearing upon what Randolph

ric of “liberty” and “equality,” was in termed ‘“‘the harmony of the United

, 89

Federalism and the Constitution States,” since any object of policy not con- power over any and all state legislation.?}

fined “‘in its nature and operation to a par- Instead, the convention inserted the ticular State’’ was apt to become a source important clause declaring acts of Con-

of friction among the states. gress and treaties concluded under consti-

The general distinction they made tutional processes to be the supreme law

between national and local questions con- of the land. In ambiguous phrases, the

tained two inherent problems for the Supreme Court of the national govern-

framers. First, there remained the need to ment was given power to subject cases

establish bounds beyond which neither involving constitutionality to judicial the national government nor the states review. And finally, in what would could act. Second, there needed to be become the storm center of constitutional some federal ‘‘umpire,”’ to rule in cases of controversy for a century and a half, the disputed jurisdiction between the states Constitution conferred upon Congress the and Congress. On the matter of bounda- power to act for ‘‘the general welfare’ and

ries, the Constitution finally struck a bal- to enact all legislation ‘‘necessary and

ance between grants of authority and proper’ for implementation of its dele-

express limitations. In the Congress they gated powers. ,

vested the power to levy taxes and duties, But in the last analysis the settlement of to maintain an army and navy, to borrow conflicts between the states and Congress money, to regulate commerce, award pat- would have to be decided by the informal ents on inventions, control admiralty mat- political process. When the framers took ters, establish federal courts, and the like. up the defense of the Constitution against But prescribed bounds were set, too, in Antifederalist critics during the ratifica-

the interests of personal liberty and of tion controversy, repeatedly they rested property rights: no ex post facto laws, their case upon an estimate of how the bills of attainder, or suspension of habeas political process would actually work.

corpus would be permitted. Similar

restrictions were placed on the states: all The Balance of Power: The View of _

must give full faith and credit to the laws The Federalist

of each, no duties might be levied without

approval of Congress, no coinage of The brilliant collaborative defense of

money was permitted, titles of nobility the Constitution by Jay, Hamilton, and were prohibited, ex post facto legislation Madison in The Federalist essays must be

was barred. The national power was understood in the context of the ratificapledged to the protection of the states tion debate. The Antifederalists had con-

against invasion or insurrection; and demned the system proposed in the finally, a republican form of government Constitution as ‘‘a perfect medley of con-

was guaranteed to each state.?° federated and national government.” That

Obviously, the language of the Consti- it was “‘without example and without tution, both as it granted and as it limited precedent” (in this they agreed with its authority, left ample room for conflicting defenders) was no recommendation, for interpretation. In whom the power was this ‘‘strange hotch-potch” of political vested to decide in cases of jurisdictional institutions would tend to one end only — conflict would therefore be crucial. Dur- the destruction of states’ rights and sovering the convention’s early weeks, most of eignty, and with them the people’s liberthe delegates appeared to agree that Con- ties. Such minor concessions as they had

gress must be given power to decide: in made to the states, it was said, were

fact, not until late August, only a month included by the framers only to confuse before the convention concluded its work, “the unsuspecting multitude.”’?? Moredid the delegates finally vote (and then by over, the Antifederalists questioned the a margin of only a single state’s vote) to legitimacy of the convention’s proposal discard a provision for congressional veto for a new government and its call for rati-


Harry N. Scheiber

fication directly by the people acting and administering laws. Its jurisdiction is through state conventions. ““The people limited to certain enumerated objects, have no right to do this without the con- which concern all the members of the sent of those to whom they have delegated republic, but which are not to be attained

their power,” it was argued; through the _ by the separate provisions of any. The

voice only of the state legislatures the subordinate governments which can

people can speak, “through their ears, extend their care to all those other objects, only, can hear.’”’?3 That the convention = whichcan be separately provided for, will

had arrogantly assumed unwonted retain their due authority and activity.”’

authority was bad enough; but now it was He reiterated in No. 45 that the powers foisting on the people a monstrous hybrid delegated to the national government of federative and centralist government would be ‘‘few and defined; those which which in fact would become an instru- are to remain in the State Governments

ment for oppression. The means for such are numerous and indefinite.”’ oppression wereready athandintheCon- In addition to a division of power that stitution: its supremacy clause would favored the states, Madison argued, the

support nearly any attack on state sover- compound nature of representation in the eignty; the necessary-and-proper and gen- national government would assure the eral-welfare clauses comprised practically states of their legal rights and afford them

unlimited writs of authority; and, in any an ample opportunity to pursue local case, such issues would become moot interests. Without the states, the national soon enough, for the power to raise an government could not be set into operaarmy by conscription (thus subjecting tion: they were to be ‘constituent and thousands of citizens to loss of liberty by essential parts” of the federal system, subjecting them to military law) would = whereas the national government was become the power to suppress popular ‘“nowise essential to the operation or orgaelections and finally to enthrone a mon- nization” of the states. With the presiarch.?4 Even in the hands of men of unim- dent’s election dependent upon voting by

peachable republican principles, such states, with Senate elections left to the authority as the Constitution proposed to _ legislatures, and even the House of Reprevest in the president and Congress could sentatives left exposed to the influence of not be responsibly exercised: the country state legislatures, both Congress and the

was geographically too extensive for a executive would much more likely be national government on truly republican “too obsequious,” rather than ‘“‘overbearprinciples — ‘‘you might as well attempt _ing,” toward the states.?” Similarly, in his

to rule Hell by prayer.’’25 private correspondence, Madison wrote

The authors of The Federalist replied that the national government would first to the criticism that the Constitution derive its powers “entirely from the lacked meaningful safeguards for states’ subordinate authorities,’ a fact that rights. In No. 45, Madison admitted that would “effectually... guard the latter he put ‘‘the happiness of the people’’ against any danger of encroachments.”’2® above state sovereignty whenever the two Though Madison denied the Antifedcould not be reconciled. But he could see eralists’ contention that the national govno potential danger in the formal powers |= ernment and the states would always be of the national government granted inthe ‘‘mutual rivals and enemies,” he was will-

Constitution: ‘Its jurisdiction extends to ing to explore the probable course of

certain enumerated objects only,’ he events should rivalry occur. All the

declared. ‘‘It leaves to the several States a weight of traditional popular loyalties lay residuary and inviolable sovereignty over on the side of the states, he wrote; and so, all other objects.’’?° In No. 14, he had writ- if the issue at stake was one of immense ten: ‘‘The general government is not tobe importance to a state, the state could put

charged with the whole power of making powerful obstructions in the way of

91 Federalism and the Constitution

national authorities by means of legisla- erence in the ninth essay to ‘certain tion, outright civil disobedience, or even a exclusive and very important portions of

resort to arms. Moreover, ‘‘ambitious sovereign power’ to be left with the

encroachments” by the government on states, his basic premise was that the pur-

the authority of one state would be per- suit of paramount national purposes

ceived immediately as a threat to all the required “the most ample authority” for states — and so “every [state] Government the national government.34

would espouse the common cause. A cor- Yet when Hamilton considered the respondence would be opened... One possibility of conflict on some intensely spirit would animate and conduct the felt issue between a state and the national

whole.’’29 government, he rested his argument on Alexander Hamilton, in his contribu- much the same basis as Madison had

tions to The Federalist, began with prem- done: all the natural loyalities of the peoises different from Madison’s, but he came ple would be on the side of the state. to much the same conclusions. In contrast This would be especially true among to Madison’s stress on the formal division common men; for unlike ‘speculative

of sovereignty that favored the states and men” they could not be expected to

his emphasis on the limited extent of the understand the national interest or to put enumerated national powers, Hamilton their highest loyalty in the national gov-

placed his greatest emphasis on the ernment. Again like Madison, Hamilton

importance of a single sovereign. Those predicted that localistic pressures from who wished to have the states retain all thirteen separate state interests “will... their existing powers, Hamilton said, constantly impose on the national rulers ‘seem to cherish with blind devotion the the necessity of a spirit of accommoda-

political monster of imperium in tion.’’35 But here, too, there was a subtle imperio.’’3° Whereas Madison repeatedly difference of viewpoint. Whereas underlined the importance of the states to Madison admitted that ‘‘numerous, indef-

the operations and structure of the inite’’ powers would remain ‘‘exclunational government, Hamilton insisted sively’’ with the states, Hamilton indi-

that ‘“‘the majesty of the national author- cated no sense of such broad state ity’ could not be compromised — “it powers. He spoke instead in the future-

must stand in need of no intermediate leg- conditional tense, in tentative, pragmatic islations.’’31 Similarly, Madison wrote in terms, of ‘‘those residuary authorities, No. 45 that the new Constitution would which it might be judged proper to leave

invigorate the powers vested in Congress with the States for local purposes.’’ by the Articles, rather than instituting Becoming more specific, he went only so new powers; whereas Hamilton adduced far as to cite ‘the administration of pri‘the absolute necessity for an entire vate justice between citizens of the same change in the first principles of the sys- State, the supervision of agriculture, and tem.’’3? The leaders of the Revolution had ... other concerns of a similar nature, all “formed the design of a great confeder- those things in short which are proper to

acy,’ Hamilton wrote, but ‘they erred be provided for by local legislation.’’ He most in the structure of the union’? — and could foresee no incentive for the

the union had now been ‘‘new-modelled”’ “national rulers’? to make incursions on

by the act of your Convention.’’33 the states’ powers, considering that such

“Your Convention’? — these words powers “‘would contribute nothing to the

were addressed directly to the people, not dignity, to the importance, or to the spen-

the states. Uncompromisingly Hamilton dour of the national government.’’>® insisted on the common status of all the Then, turning the argument around,

people of the states as ‘‘fellow citizens of Hamilton insisted in No. 17 that the com-

one great respectable and flourishing mon man’s almost blind, unthinking

- empire.” Though he did make passing ref- devotion to the states was the best reason


Harry N. Scheiber , for giving to the federal government “all trampled in the states. On the other hand,

the force which is compatible with the as Madison and most of the Federalists

principles of liberty.” , repeatedly asserted, the local interests of

But what amount of centralization was thirteen separate states — and worse still, in fact compatible with libertarian princi- in many cases, the interests of transient ples? And what remedies were at hand and tyrannous majorities in the individfor the people if, as the Antifederalist ual states — had been pursued under the

critics of the Constitution warned, the flag of sovereign states’ rights, at the central government were to become the expense of the nation’s common interinstrument of an unscrupulous monar- ests, such as provision of effective self-

chical or aristocratic faction? Here the defense and conduct of a vigorous

authors of The Federalist took a common foreign policy.37

stand in opposition to their critics. The “The only remedy,” Madison asserted,

cornerstone of their argument was a “is to enlarge the sphere, and thereby

theory of American pluralism formulated § divide the community into so great a first in the convention and then more ela- number of interests and parties, that in

borately in The Federalist essays, partic- the first place a majority will not be ularly in No. 10, by James Madison. likely at the same moment to have a com-

ore interest from of secthe , oe |~,mon , whole or of separate the minority; andthat in the

Pluralism and the Requirements of ond place, that in case they should have

Union | : such an interest, they may not be apt to

Speaking in the convention on June 6, unite in the pursuit of it.’’35 Because the during the debate on representation in —_ lower house of Congress was to be appor-

Congress, Madison expounded on the tioned on a district system, it would

basic dilemma of representative govern- —_ assure the necessary division of the comment that once a majority forms, it might munity into fragmented parts that would

exercise tyrannous control over the make majority coalitions on a monolithic

minority. It was inevitable, he said, that basis all but impossible. Factions, parties

“civilized Societies would be divided formed around individual leaders, self-

into different Sects, Factions, & interests, interested men or groups seeking power

as they happen to consist of the rich & “adverse to the rights of other citizens” poor, debtors & creditors, the landed, the — all such threats to liberty would need manufacturing, the commercial interests, to confront a representative government the inhabitants of this district, or that dis- extending over the scale of the nation

trict, the followers of this political leader and as diverse as the nation was or that political leader, the disciples of diverse.29 In this manner, Madison this religious sect or that religious sect. departed from the prevailing political

In all cases where a majority are united theory of the day that republican governby a common interest or passion, the ments could operate effectively only over rights of the minority are in danger.” a relatively small territory.*°

Madison contended that the results of the In The Federalist, No. 10, he American experiment in republican gov- expounded the principle further, asserternment since the Revolution had been ing that the ability of the union under the twofold. On the one hand, in the name of Constitution ‘‘to break and control the

‘the real or supposed interest of the violence of faction’? would be among its - major number,’ arbitrary state laws greatest strengths. To destroy the liberty infringing rights of creditors had been on which faction breeds would be enacted, ‘‘the landed interest’? had unthinkable. Instead, the Constitution pushed through legislation at the would vest important powers in the cenexpense of ‘‘the mercantile interest,’ and tral government (thus assuring, it may be

personal. liberties generally had been added, that no significant faction would


Federalism and the Constitution

fail to struggle for influence in its deci- | powers, each controlling itself by checks

sions); it would provide for election of and balances, and all controlling facrepresentatives who would ‘refine and tions, in a system of elaborate tension. enlarge the public views,” in themselves For Federalist leaders advanced two moderating the effects of faction; and other important arguments in favor of the finally it would enlarge the polity so as Constitution that rested on considerato reduce the possibility that factious tions of brute power. One was articulated

leaders could obtain control of all the most explicitly by Hamilton, who , government’s various instruments of betrayed his basic differences with power. For with a government of three Madison when he said in the New York branches at the national level, including convention: ‘‘We are attempting by this one branch elected by the people them- constitution to abolish factions and to

selves divided into relatively small dis- unite all parties for the general wel-

tricts, and with thirteen or more state fare.’’43 By his own confession Hamilton governments, it would be unlikely that was in “the habit of using strong lanmen of evil intent would find it possible guage,” and particularly now on the sub‘“‘to spread a general conflagration’’ ject of the Constitution, for on no matter

through states outside their own. The had he known “stronger emotion, or

character and enlarged views of such more anxious concern.’’44 We need not men as were likely to be elected to the attribute to the heat of debate alone, howmajesty of national office; the “greater ever, his strenuous language, for Hamilsecurity afforded by a greater variety of ton’s rhetoric reflected accurately enough parties” against domination by any one; his belief that only a powerful central and ‘‘the greater obstacles’’ to coordina- government could ‘energize’ the nation, tion of efforts to form a majority were all — or act with the dignity and majesty that arguments for forming the national must mark the actions of a great empire.

government.*} Hamilton was even willing to contem-

The essence of Madison’s formula was plate the use of naked force when the stathe idea that the system would work in a bility of the government or the national complex relationship of continual ten- interest was at stake. Thus in The Federsion. Just as the national government alist, No. 9, he argued for ‘‘the utility of a under the Constitution would consist of confederacy, as well to suppress faction

three branches (including a divided, and to guard the internal tranquillity of

bicameral legislature) working in a sys- States, as to increase their external force tem of checks and balances, so too would and security.’’ He expressed contempt for the states and the national government be the idea of a nation composed ‘‘of little jealous of one another’s prerogatives, and jealous, clashing, tumultuous common-

so too would legitimate local or factional wealths, the wretched nurseries of

interests be free to struggle for primacy unceasing discord’’; under the Constituin the many seats of power into which tion, he went on (quoting Montesqueiu the government was fractionalized. In on combining the advantages of monMadison’s scheme, as in the model of archy with those of republicanism in a working government postulated by most strong federation of republican states), of the Federalist spokesmen, there would the central government could put down

be numerous centers of energy in the sys- insurrections wherever they might occur.

tem, and also multiple repositories of Similarly, in the last article of The Feder-

power.*? alist, a summary argument for the Consti-

But we would misjudge the Federalists tution, Hamilton invoked the ability of a if we assumed that all of them put their strong union to impose “‘restraints ... on faith entirely in Madison’s finespun local factions and insurrections.’’45 theory of the different governments con- The second deviation from Madison’s ©

trolling one another by separation of theory of factions appeared in the Feder-


Harry N. Scheiber

alists’ arguments regarding the possibil- cesses of politics on a pluralistic basis

ity of majoritarian solutions in situations could better hope to survive great crises.

of intense political conflict. From reading The basic difference, then, between the Madison in No. 10 of The Federalist, it is Federalist argument and the Antifedera-

easy to conclude that he respected so list view on the great question of majoricompletely the salutary force of tensions tarianism was this: Hamilton and other in a pluralistic situation that his theory Federalists regarded a majoritarian soluleft no room for majoritarianism. And yet tion as a remedy appropriate only for we find Madison and Hamilton agreed, extraordinary issues evoking extreme elsewhere, that even though the federal divisions, while the Antifederalists system might hamper majority domina- regarded the majoritarian resolution of tion — and even though the use of cen- conflict as appropriate to all issues,

tral authority might be a deterrent to indeed the only political process that local insurrections or tumult — still, they deemed legitimate by republican

forthright majoritarian action was not standards. Majorities in each state, in the foreclosed by the Constitution. Thus in Antifederalist view, were better trusted No. 85, Hamilton pointed out that when with defense of personal and property

there was a genuine popular will for rights than some remote but powerful

change — whether to curb excessive cen- (potentially dominant) national authortralization or for any other purpose — the ity. They simply did not share Madison’s

states and the people could force a faith in checks and balances or in the

change virtually overnight by the amend- extension of republic institutions over a ment process. “‘Whenever nine states large territory as guarantees of American

concur,’ Hamilton pointed out, ‘the pluralism, any more than they shared

national rulers... will have no option on Hamilton’s faith in the majesty of the

the subject.” nation as an overriding objective of politIn a remarkable passage, Hamilton ical organization justifying the powerful indicated his expectation that the ordi- centralization of authority. nary course of political process in the United States would involve the pluralis- Manifold Legacies of the occurred in the convention itself: “Many Original Understanding of those who form the majority on one In the brilliant debates during the conquestion,” he wrote, ‘“‘may become the vention, in the pamphlets of the ratificaminority on a second, and an association tion controversy, and, most notably, in dissimilar to either may constitute the The Federalist essays, the champions of

tic organization of interests, as had . ,

majority on a third.’’ Hamilton went on the Constitution provided not only a to argue, however, that when the people rationale for their innovative theory of feel so intensely on some issue that federalism but also a coherent basis for

pluralistic coalitions should break down the forging of an American political ideo-

or prove inadequate, then the majority logy. But to venerate the work of the

could organize itself and push through a founders is not enough: for despite the constitutional amendment on that single telling accuracy of many of their broad issue. ‘“There would then be no necessity political insights and their specific pre-

for management or compromise, ... no dictions, they were on some points

giving nor taking. The will of the requi- divided in their own counsels, and so site number would at once bring the mat- their legacy was at least to that extent ter to a decisive issue.’’46 Implicit in the ambiguous. argument, it is worth pointing out, is the One major ambiguity of the Federalists’ corollary view that because intensely felt defense of the Constitution has vexed

issues could be isolated as constitutional- constitutional debate in this country ever amendment questions, the ordinary pro- since their times: it can be found in their


Federalism and the Constitution

conception of federal-state relationships nowise essential to the operation and

in the compound system of government organization of the former.’’48 On its face

that they formulated. On the one hand, this notion lacked credibility: that the

the Founders argued that they had assim- national government would somehow be

ilated the national government into the dependent on the states, but without existing system of states, or, as one of reciprocal dependence, in the system’s them phrased it, they had ‘engrafted”’ practical operation, was an idea credible one upon the other. On the other hand, only if one accepted Madison’s highly

they argued that the resulting division of abstracted view of what the words authority had created two separate and “organization” and: “operation” would distinct spheres of sovereignty, in which mean. Whatever its logical merits,

the central government would be Madison’s postulate reflected a more

supreme but the states would retain serious failure of vision: for clearly, he exclusive sovereign jurisdiction over badly underestimated the possibility that their “domestic’’ concerns. Thus even the national government’s operations Hamilton, the most candid centralist of might become so pervasive in the society them all, conceded that the states would at large and in the federal system per se retain certain exclusive attributes of sov- that the autonomy of the states would ereignty; yet he used indefinite and prag- become severely attenuated. Evidence of

matic terms — saying that the states’ this failure was Madison’s assertions in authority would reach as far as the states No. 45 of The Federalist that the central were “competent,” leaving the impres- government’s civil establishment “will sion that states’ rights would be defined be much smaller’ than the comparable

pragmatically according to circum- civil service in the states; that the

stances.47 Although Madison, too, argued national government would seldom, if

that changing conditions in a growing ever, resort to direct internal taxation; nation required the ‘‘necessary and and that even if military might should proper” clause, he took a different tack: become a measure of comparative “The Federal and State Governments,”’ strength, the states would command he wrote in The Federalist, No. 46, were more strength in their militias than the

“instituted with different powers, and national government could assert

designated for different purposes.” In through use of a standing army. subsequent years the Madisonian-Hamil- Hamilton’s view was more realistic: at tonian division over the meaning of ‘‘dif- least he granted the theoretical possibilferent powers’ would emerge as the great ity that the central government might |. focus of division of American politics, become more essential to the states’ conpitting the broad-constructionist Federal- tinued operation than the reverse. He ists against the Jeffersonian party, which argued in No. 17 that this might occur if became dedicated to a strict interpreta- the states lost the localistic loyalties of tion of the enumerated powers granted their citizens by dint of ‘‘a much better

Congress by the Constitution — but the administration’’ of the federal seed of controversy had already been government.

planted by 1789. The most accurate predictions, howWhen Madison attempted to blend his ever, actually came from the Antifederal-

theory of separate, distinct powers with ists. It was they who foresaw that the the concept of assimilation in a com- “general welfare’ and ‘necessary and pound system, his argument foundered proper’ clauses in the Constitution could on sterile abstractions. For his construct readily legitimize sweeping changes in

raised more new perplexities than it the balance of national versus state

resolved: ‘‘The States,’ he argued, were powers.*? By contrast with Madison’s tor-

‘constituent and essential parts of the tured construct of an “assimilated” sys-

Federal Government, whilst the latter is tem in which the lines of dependence ran


Harry N. Scheiber only one way, the Antifederalists pre- able of passionate and capricious poli-

dicted accurately that the national gov- tics. In No. 78 of The Federalist, ernment might eventually, or even Hamilton asserted the importance of the immediately, become the instrument for judiciary as a first line of defense against

massive centralization of power — “those ill humours which the arts of

indeed, potentially of nearly all power. designing men, or the influence of partic-

Of course, the accuracy of the Antife- ular conjunctures, sometimes dissemideralist view can only be demonstrated nate among the people themselves.”’

from the perspective of the twentieth Nowhere in The Federalist, however, is century, when modern industrialization there an explicit definition of the difand a succession of major wars have ferences between the common good and imposed basic changes of power distribu- the will of transient majorities.51 Instead

tion. The massive centralization pre- © we must deduce a definition from what

dicted by the Antifederalists did not was implicit in the convention debates

occur as the result of a ‘‘monarchist’’ con- and in the literature of the ratification spiracy as they had imagined — unless controversy. Part of their definition of one wants to read the legislative record common good was negative in approach; of the Washington and Adams adminis- that is, the Federalists clearly defined trations through Antifederalist-Jefferson- majority will as contrary to the public

ian lenses. Oo: , interest when it imposed its will on minOn still another great issue, the framers orities and capriciously assaulted propoffered only implicit theory, susceptible erty or personal liberties. The preamble

to varied interpretation: it concerned to the Constitution asserted the people’s

their conception of the “common good” determination to ‘‘secure the Blessings of and the relationship between that con- Liberty to ourselves and our posterity.’’ cept and ‘majority rule.” As we have This phrase was drawn from the rhetoric seen, notions of an overarching common of libertarian thought expressed in the interest were invoked repeatedly in the Declaration of Independence, where it arguments of The Federalist, as in No. 45 spoke of “life, liberty, and the pursuit of

when Madison argued that the Revolu- happiness.’’ Obviously the Federalist tion had been fought not for state sover- view of majorities involved a fear that eignty but for “‘the public good, the real they might jeopardize the blessings of welfare of the great body of the people.’ liberty insofar as they imposed ‘‘serious Similarly, Madison’s famous model of oppressions of the minor party in the factions was based on the assumption, community.’’>?

common in that day, that special inter- But the Federalist definition of the

ests would work for self-interested aims common good had its positive aspect as

in politics to the detriment of the public well, and, as Louis B. Wright has

good.5? , reminded us, it was an advanced demo-

Neither Madison nor Hamilton, nor cratic view. For though modern analysts indeed any of the other pro-Constitution of the framers always cite Madison’s spokesmen, was ready to contend that in view of factions counterpoised one all instances the will of the majority against the other within a framework of would be consistent with (or a definition governmental checks and balances, sel-

of) the common good. Thus while dom remembered is Madison’s own Madison stressed the importance of admission that “in the last resort, a counterpoised factions, others in the con- remedy must be obtained from the peo-

vention emphasized the need fora small ple, who can by the election of more

upper house of Congress that could exert faithful representatives, annul the acts of a meliorating influence on the popularly ... usurpers.” Elsewhere he defined the elected House of Representatives which, essence of the ratification issue in similar

as the voice of the democracy, was cap- terms: ‘‘Either the mode in which the


, Federalism and the Constitution Federal Government is to be constructed frage: unlike most of the state constitu-

will render it sufficiently dependent on tions, it established no property or

the people, or it will not.’’53 If a conflict religious qualifications for officeholding, should arise, pitting the central govern- and it left the door open for progressive ment against the states, the ultimate con- expansion of the suffrage in the states.58

sideration was that both were ‘agents It was a curious kind of confidence,

and trustees of the people’; and so ‘‘the this belief of the Federalists in the mind ultimate authority, wherever the deriva- and spirit of the people, for it was not a tive may be found, resides in the people blind faith in the people’s capacity for alone,’’ and the outcome of such conflict self-government forever and under all would “depend on the sentiments and conditions. Rather it was a realistic belief sanction of their common constituents.”’ — that so long as the republican spirit — Madison was even willing to modify his the desire for self-government and the view of inevitably self-interested factions willingness of men to make representato this degree: that in an extensive nation tive institutions work — endured, the

founded on republican principles, and new federal republic would endure. embracing heterogeneous interest Here, too, the seeds of future political groups, majorities could seldom form division were evident. For, on the one “on any other principles than those of hand, Hamilton, within two years after justice and the general good.’’>4 the new nation was formed, would lead

In the end, then, Madison did not trust the new Federalist party toward a protransient majorities, but he did, perforce, gram for economic development using trust the people. What ‘‘animates every heavily centralized instruments of policy.

votary of freedom,’ he wrote, was an During the late 1790s he would cham“honorable determination... to rest all pion such repressive laws as the Alien

our political experiments on the capacity and Sedition Acts and argue for a standof mankind for self-government.’’>> It was ing army sufficiently large to ensure the a similar faith in the republican ‘‘genius”’ nation’s safety against both subversion

(or ‘‘spirit’’) of the people of America that and invasion. On the other hand,

led George Mason of Virginia to argue in Madison would join with Thomas Jeffer-

the convention that the people’s repre- son to champion diversity as an instrusentatives in Congress “should think as ment superior to imposed national unity they think, and feel as they feel.’’ An for the pursuit of the ‘‘common good,”’ identical belief supported James Wilson’s and he would seize upon a strict con-

view that government must not only struction of constitutional grants of

possess the power adequate to govern but power to Congress as the bulwark of libalso possess ‘‘the mind and sense of the erty in the face of what he viewed as out-

people at large.’’>* Even Alexander rageous transgressions. Hamilton, who was more disposed than As Madison came to view it, a national many to stress “the passions we see, of republican government must be built, in avarice, ambition, interest, which govern the last analysis, as ‘‘one paramount

most individuals, and all public Empire of reason, benevolence, and bodies,’’>? admitted in No. 78 of The Fed- brotherly affection.’’ The “‘public mind’’

eralist that all issues must rest in the end must be the first line of defense against on “that fundamental principle of repub- incursions on liberty; “the sense of the lican government, which admits the right | people’’ must be understood as the prinof the people to alter or abolish the estab- cipal operative check against a dangerous

lished constitution whenever they find it concentration of power in any one

inconsistent with their happiness.” The center.°? As Hamilton’s prescriptions for

same faith in the people’s capacity to public policy were spelled out in his

govern themselves was reflected in the monumental papers on credit, banking, Constitution’s provisions regarding suf- and manufacturing, it became evident


Harry N. Scheiber

that, as John Miller has written, he “saw means for their attainment in the ratifica-

nothing to be gained by appealing to tion controversy of 1788, and these patriotism, altruism or magnanimity.’’©° became the basis for division that

Hamilton thus insisted that a forceful and resulted in the formation of national energetic national government must lead, political parties in the 1790s.° and not merely moderate and foster coali- Similar differences of persuasion are

tion by consent at the points of least evident in today’s controversies on the

resistance. In his emergent definition of future of American federalism. The wis“common good,” though power to over- dom of The Federalist — that in the end turn the existing order still remained the people must rule — is still highly relwith the people, the national government evant to our present-day concerns, but

must harness the ambitions of men to we cannot derive all the help we might

itself by holding out incentives — that is, ideally like from the content of the origiby offering a “payoff” that in time would nal understanding. For both the Constitu-

buy the loyalty of the private centers of tion itself and the conditions under

power that counted most of all. As Pro- which it operates are fundamentally diffessor Miller has argued: ‘‘While he ferent from the document and conditions spoke the language of conservatism, of the past. The issues of responsible govHamilton in fact undertook to revolution- ernment have been recast in a context ize the economic and political life of the beyond the vision of the framers as a United States. His dream was the trans- result of the Civil War—Reconstructionformation of the republic into a highly period amendments. The Constitution centralized nation in which manufactur- has been restructured to square political ing, commerce and agriculture were practice with egalitarian ideals: individumade to serve the purposes of an overrid- als as well as states have now been

ing nationalism.’’®! guaranteed equality of legal standing in Both the new Federalist Party’s con- the nation. The Senate, which is elected

cept of ‘“‘overriding nationalism,”’ directly by the people now, no longer has

together with the uses of governmental precisely the basis of representation conpower that such a goal implied, and the ceived by the founders. And by dint of Jeffersonian Republicans’ vision of a the Sixteenth Amendment, the national ‘paramount Empire of reason, benevo- government has preempted virtual conlence, and brotherly affection” were logi- trol over the most productive and flexible

cally consistent with the concepts of source of revenues, the income tax. More-

“common good” variously implied in the over, accretions of power have formed in Federalists’ formulation and defense of the private sector that pose challenges to the Constitution. Just as with the limits of | responsible government in a manner enumerated powers and broad construc- unforeseen in 1787; the national governtion and with the meaning and potential ment, by regulation of industry, by vestshape of an ‘“‘assimilated’’ and ‘“‘com- ing of special representative powers in

pound” government, the Federalists’ labor unions, by subsidies and defense ambiguous concept of public good con- spending, and the like, is intertwined

tained the basis of controversy. Within and mixed with private-sector interests. the ideological consensus in favor of self- The resulting structural complexity of government on libertarian, republican public and private power renders it diffi-

principles that marked Federalist and cult even to identify where power actuAntifederalist thought alike, there had ally lies, let alone how it can be made been ample room for controversy over responsible.

Leonard W. Levy | Liberty and the First Amendment: 1790—1800

In 1798 there was a sudden break- To be sure, the principle of a free press,

through in American libertarian thought like flag, home, and mother, had no eneon freedom of speech and press — sud- mies. Oniy seditious libels, licentious den, radical, and transforming, like an opinions, and malicious falsehoods were

underwater volcano erupting its lava condemned. The question, therefore, is upward from the ocean floor to form a not whether freedom of the press was

new island. The Sedition Act, which was favored, but what it meant and whether its

a thrust in the direction of a single-party advocates would extend it to a political press and a monolithic party system, trig- opponent whose criticism cut to the bone

gered the Republican surge. The result on issues that counted. Jefferson once

was the emergence of a new promontory remarked that he did not care whether his of libertarian thought jutting out of a stag- neighbor said that there are twenty gods

nant Blackstonian sea. or no God, because ‘it neither picks my

To appreciate the Republican achieve- pocket nor breaks my leg.’’? But in draftment requires an understanding of Ameri- ing a constitution for Virginia in 1776 he can libertarian! thought on the meaning proposed that freedom of religion “shall

and scope of freedom of political dis- not be held to justify any seditious

course. Contrary to the accepted view,? preaching or conversation against the neither the Revolution nor the First authority of the civil government.’4 And Amendment superseded the common law in the same year he helped frame a statute by repudiating the Blackstonian concept on treasonable crimes, punishing anyone > that freedom of the press meant merely who “‘by any word” or deed defended the freedom from prior restraint. There had cause of Great Britain.5 Apparently politibeen no rejection of the concept that gov- cal opinions could break his leg or pick ernment may be criminally assaulted, that his pocket, thus raising the question of

is, seditiously libeled, simply by the what he meant by freedom of the press. expression of critical opinions that tended We can say that he and his contemto lower it in the public’s esteem. poraries supported an unrestricted public

discussion of issues if we understand that Reprinted from American Historical Review, 58 “unrestricted’’ meant merely the absence (1962), 22-37, by permission. Copyright © 1962 by of censorship in advance of publication:

Leonard W. Levy. no one needed a government license to 99


Leonard W. Levy , express himself, but he was accountable gerian principles seemed daring, novel, under the criminal law for abuse of his and had few adherents. It was not until right to speak or publish freely.® 1790, after the framing, but before the ratiBefore 1798 the avant-garde among fication, of the First Amendment, that the American libertarians staked everything first state, Pennsylvania, took the then on the principles of the Zenger case,’ radical step of adopting the Zengerian which they thought beyond improve- principles® which left the common law of ment. No greater liberty could be con- seditious libel intact. The Pennsylvania ceived than the right to publish without provision was drafted by James Wilson, restriction if only the defendant might who (in the state convention that ratified plead truth as a defense in a criminal the Constitution) declared, without chalprosecution for seditious, blasphemous, lenge by any of the ardent proponents of a obscene, or personal libel, and if the crim- bill of rights: ‘‘What is meant by the libinality of his words might be determined erty of the press is that there should be no

by a jury of his peers rather than by a antecedent restraint upon it; but that judge. The substantive law of criminal every author is responsible when he

libels was unquestioned. attacks the security or welfare of the gov-

Zengerian principles, however, were a ernment.’ The mode of proceeding, Wilfrail prop for a broad freedom of the press. son added, should by by prosecution.? _ Granted, a defendant representing a popu- The state constitutional provision of 1790

lar cause against the administration in ~ reflected this proposition, as did state

power might be acquitted, but if his views trials before and after 1790.1°

were unpopular, God help him — for a Delaware and Kentucky followed Pennjury would not, nor would his plea of — sylvania’s lead in 1792,!1 but elsewhere truth as a defense. A jury, then as today, the status quo prevailed. In 1789 William was essentially a court of public opinion, | Cushing and John Adams worried about often synonymous with public prejudice. | whether the guarantee of a free press in

Moreover, the opinions of men Massachusetts ought to mean that truth notoriously differ: one man’s truth is was a good defense to a charge of criminal

another’s falsehood. Indeed political libel, but they agreed that false publica-

opinions may be neither true nor false and tions against the government were punare usually not capable of being proved by ishable.12 In 1791, when a Massachusetts

| the rules of evidence, even if true. An editor was prosecuted for a criminal libel

indictment for seditious libel based on a against a state official, the Supreme Judidefendant’s accusation of bribery or cor- cial Court divided on the question of truth ruption by a public official can be judged = as a defense, but, like the Pennsylvania by a jury. But the history of sedition trials judges,'> agreed that the state constituindicates that indictments are founded on tional guarantee of a free press was merely accusations of a different order, namely, — declaratory of the common law in simply that the government, or one of its mea- prohibiting a licensing system. 14 sures or officials, is unjust, tyrannical, or The opinions of Jefferson, the acknow-

contrary to the public interest. Liber- ledged libertarian leader in America, and

tarians- who accepted Zengerian princi- of Madison, the father of the Bill of Rights, ples painted themselves into a corner. If a are especially significant. Jefferson, in jury returned a verdict of guilty despite a 1783, when proposing a new constitution

defense of truth, due process had been for Virginia, exempted the press from

accorded and protests were groundless, prior restraints, but carefully provided for for the substance of the law that made the prosecution — a state criminal trial — in trial possible had not been challenged. cases of false publication.15 In 1788, when American acquiescence in the British or urging Madison to support a bill of rights common-law definition ofa free press was to the new federal Constitution, Jefferson

so widespread that even the frail Zen- made the same recommendation.?®


Liberty and the First Amendment

Madison construed it in its most favorable ered the executive and the judiciary as light, observing: ““The Exemption of the well as Congress. The omitted clause press from liability in every case for true would have prohibited the federal courts

facts is ... an innovation and as such from exercising any common-law juris-

ought to be well considered.’’!7 On con- diction over criminal libels. As ratified, sideration, however, he did not add truth the First Amendment declared only that as a defense to the amendment that he Congress should make no law abridging

offered on the press when proposing a bill the freedom of speech or press. ,

of rights to Congress.1® Yet his phrasing What did the amendment mean at the appeared too broad for Jefferson, who time of its adoption? More complex than stated that he would be pleased if the it appears, it meant several things, and it press provision were altered to exclude did not necessarily mean what it said or freedom to publish ‘false facts .. . affect- say what it was intended to mean. First, as ing the peace of the confederacy with is shown by an examination of the phrase foreign nations,’!9 a clause whose sup- “the freedom of the press,’’ the amend-. pressive possibilities can be imagined in ment was merely an assurance that Con-

the context of a foreign-policy contro- gress was powerless to authorize

versy such as the one on Jay’s Treaty. restraints in advance of publication. On

Madison fortunately ignored Jefferson’s this point the evidence for the period from proposal, but there is no evidence war- 1787 to 1791 is uniform and nonpartisan. ranting the belief that he dissented from For example, Hugh Williamson of North the universal American acceptance of the Carolina, a Federalist signatory of the _ Blackstonian definition of a free press. At Constitution, used freedom of the press in the Virginia ratifying convention in 1788 Blackstonian or common-law terms,”® as Madison remained silent when George did Melancthon Smith of New York, an Nicholas, one of his closest supporters, Antifederalist. Demanding a free-press declared that the liberty of the press was guarantee in the new federal Constitution, secure because there was no power to despite the fact that New York’s constitulicense the press.2° Again Madison was tion lacked that guarantee, Smith argued

silent when John Marshall rose to say that that freedom of the press was ‘‘fully ,

Congress would never make a law punish- defined and secured” in New York by ing men of different political opinions “the common and statute law of England”’ “unless it be such a case as must satisfy and that a state constitutional provision the people at large.’’?! In October 1788, was therefore unnecessary.2”? No other when replying to Jefferson’s argument definition of freedom of the press by anythat powers of the national government one anywhere in America before 1798 has should be restricted by a bill of rights,?? been discovered. Apparently there was, Madison declared: ‘‘absolute restrictions before that time, no dissent from the propin cases that are doubtful, or where emer- osition that the punishment of a seditious gencies may overrule them, ought to be libeler did not abridge the proper or law-

avoided.’’23 ful freedom of the press.?8 - When Madison proposed an amend- That freedom was so narrowly underment in Congress guaranteeing freedom stood that its constitutional protection did

of the press, he did not employ the not, per se, preclude the enactment of a

emphatic language of the Virginia ratify- sedition law. The security of the state ing convention’s recommendation that against libelous attack was always and the press cannot be abridged ‘“‘by any everywhere regarded as outweighing any authority of the United States.”’24 The social interest in completely unfettered

amendment, in the form in which discussion. The thought and experience Madison introduced it, omitted the of a lifetime, indeed the taught traditions important clause ‘‘by any authority of the of law and politics extending back many United States,’’25 which would have cov- generations, supplied an unquestioned


Leonard W. Levy

assumption that freedom of political dis- the Sedition Act of 1798 was uncourse, however broadly conceived, constitutional. stopped short of seditious libel. That act was also unnecessary as a mat-

The injunction of the First Amendment, ter of law, however necessary as a matter nevertheless, was not intended to imply of Federalist party policy. It was unnecesthat a sedition act might be enacted with- sary because the federal courts exercised out abridging ‘‘the freedom of the press.”’ jurisdiction over nonstatutory or comA sedition act would not be an abridg- mon-law crimes against the United States. ment, but that was not the point of the At the Pennsylvania ratifying convention amendment. To understand its framers’ James Wilson declared that, while Conintentions, the amendment should not be gress could enact no law against the press, read with the focus on the meaning of a libel against the United States might be ‘the freedom of the press.” It should not, prosecuted in the state where the offense in other words, be read merely to mean was committed, under Article III, section

that Congress could impose no prior 2, of the Constitution which refers to the restraints. It should be read, rather, with judicial power of the United States.3° A the stress on the opening clause: “‘Con- variety of common-law crimes against the gress shall make no law ...”’ The injunc- United States were, in fact, tried in the

tion was intended and understood to federal courts during the first decade of prohibit any congressional regulation of their existence.31 There were, in the fedthe press, whether by means of a licensing eral courts, even a couple of common-law

law, a tax, or a sedition act. The framers indictments for the crime of seditious

meant Congress to be totally without libel.32, All the early Supreme Court

power to enact legislation respecting the judges, including several who had been press. They intended a federal system in influential in the Philadelphia Convenwhich the central government could exer- tion, or in the state ratifying conventions, cise only such powers as were specifically or in the Congress that passed the Judienumerated or were necessary and proper ciary Act of 1789, assumed the existence to carry out the enumerated ones. Thus of a federal common law of crimes.?? IronJames Wilson declared that, because the ically, it was a case originating as a fednational government had ‘no power eral prosecution of Connecticut editors for whatsoever’? concerning the press, “‘no seditious libels against President Jefferson

law ... can possibly be enacted” against that finally resulted in a ruling by a it. Thus Hamilton, referring to the divided Supreme Court in 1812 that there demand for a free-press guarantee, asked, was no federal common law of crimes.4

“Why declare that things shall not be There was unquestionably a federal

done which there is no power to do?’’?° common law of crimes at the time of the

The illustrations may be multiplied fifty- Sedition Act. Why then was the act

fold. In other words, no matter what was passed if it was not legally needed? Even

meant or understood by freedom of in England, where the criminal courts speech and press, the national govern- exercised an unquestioned jurisdiction ment, even in the absence of the First over seditious libels, it was politically

Amendment, could not make speech or advisable in the 1790s to declare public

press a legitimate subject of restrictive policy in unmistakable terms by the

legislation. The amendment itself was enactment of sedition statues.*> Legislasuperfluous. To quiet public apprehen- tion helped ensure effective enforcement sion, it offered an added assurance that of the law and stirred public opinion Congress would be limited to the exercise against its intended victims. The Federalof its delegated powers. The phrasing was ists, hoping to control public opinion and

intended to prohibit the possibility that elections, emulated the British model. A those powers might be used to abridge federal statute was expedient also because

speech and press. From this viewpoint, the Republicans insisted that libels


Liberty and the First Amendment

against the United States might be tried ‘few prosecutions” because they “would

only by the state courts. have a wholesome effect in restoring the This suggests another original purpose integrity of the presses.’’41 How shall we

of the First Amendment. It has been said explain Jefferson’s letter to Abigail that a constitutional guarantee of a free Adams in 1804 in which he said: “While press did not, in itself, preclude a sedition we deny that Congress have a right to act, but that the prohibition on Congress controul the freedom of the press, we did, though leaving the federal courts free have ever asserted the right of the states, to try cases of seditious libel. It now and their exclusive right to do so.’’4 And appears that the prohibition on Congress if exclusive state power was advanced was motivated far less by a desire to give not as a principle but as a tactic for denyimmunity to political expression than by ing federal jurisdiction, how shall we a solicitude for states’ rights and the fed- explain what Jefferson’s opponents called eral principle. The primary purpose of the his “reign of terror’’:*+3 the common-law

First Amendment was to reserve to the indictments in 1806 in the United States states an exclusive legislative authority in Circuit Court in Connecticut against six

the field of speech and press. men charged with seditious libel of the

This is clear enough from the countless president?*4 How shall we explain his states’ rights arguments advanced by the letter of 1807 in which he said of the Antifederalists during the ratification “prosecutions in the Court of the U S”

controversy, and it is explicit in the that they could ‘‘not lessen the useful Republican arguments during the contro- freedom of the press,’ if truth were versy over the Sedition Act. In the House admitted as a defense?*5

debates on the bill, Albert Gallatin, Earlier, in 1798, the Federalists had

Edward Livingston, John Nicholas, and also felt that the true freedom of the press

Nathaniel Macon all agreed — to quote would benefit if truth — their truth — Macon on the subject of liberty of the were the measure of freedom. Their infapress: “‘The States have complete power mous Sedition Act, in the phrase of Gil-

on the subject ... ’’3° Jefferson’s Ken- bert and Sullivan, was the true

tucky Resolutions of 1798 expressed the embodiment of everything excellent. It

same proposition,?? as did Madison’s was, that is, the very epitome of liber-

‘“‘Address of the General Assembly to the tarian thought since the time of Zenger’s

People of the Commonwealth of Vir- case, proving that American libertarian-

ginia’’ in 1799.38 ism went from Zengerian principles to

It is possible that the opponents of the the Sedition Act in a single degeneration. Sedition Act did not want or believe in Everything that the libertarians had ever state prosecutions, but argued for an demanded was, however, incorporated in exclusive state power over political libels the Sedition Act: a requirement that | because such an argument was tactically criminal intent be shown; the power of useful as a means of denying national the jury to decide whether the accused’s jurisdiction, judical or legislative. If so, statement was libelous as a matter of law how shall we explain the Republican as well as of fact; and truth as a defense prosecution in New York in 1803 against — an innovation not accepted in England Harry Croswell, a Federalist editor, for a until 1843.4° By every standard the Sedi-

seditious libel against President Jeffer- tion Act was a great victory for liberson?39 How shall we explain the Black- tarian principles of freedom of the stonian opinions of the Republican press—except that libertarian standards judges in that case?*#° How shall we abruptly changed because the Republiexplain Jefferson’s letter to the governor cans immediately recognized a Pyrrhic

of Pennsylvania in the same year? The victory. President, enclosing a newspaper piece The Sedition Act provoked them to that unmercifully attacked him, urged a develop a new libertarian theory. It began

, 104

Leonard W. Levy to emerge when Congressmen Albert Gal- The old calculus for measuring the

latin, John Nicholas, Nathaniel Macon, scope of freedom was also rejected by the and Edward Livingston argued against new libertarians. ‘“‘Liberty’”’ of the press, the enactment of the sedition bill.47 It | for example, had always been differenwas further developed by defense coun- _ tiated from “licentiousness,’’ which was sel, most notably George Blake, in Sedi- the object of the criminal law’s sanctions. tion Act prosecutions.*® It reached its ‘‘Truth” and ‘facts’ had always divided most reflective and systematic expression the realm of lawfulness from ‘‘false_ in tracts and books which are now unfor- _—hoods,”’ and a similar distinction had tunately rare and little known even by — been made between ‘‘good motives’ and

historians. The main body of original “criminal intent.’ All such distinctions

Republican thought on the scope, mean- —_ were now discarded on grounds that they

ing, and rationale of the First Amend- did not distinguish and, therefore, were ment is to be found in George Hay’s tract, not meaningful standards that might An Essay on the Liberty of the Press;#9 in guide a jury or a court in judging an Madison’s Report on the Virginia Resolu- alleged verbal crime. The term “‘licentions for the Virginia House of Dele- — tiousness,’ said Thomson, “‘is destitute

gates;5®° in the book, A Treatise of any meaning” and is used by those

Concerning Political Enquiry, and the who wish ‘‘nobody to enjoy the liberty of Liberty of the Press, by Tunis Wortman of _ the Press but such as were of their own , New York;5! in John Thomson’s book, An opinion.’’>® The term ‘‘malice,’’ Wortman

Enquiry, Concerning the Liberty, and wrote, is invariably confused with mis-

Licentiousness of the Press;52 and in St. taken zeal or prejudice.>’ It is merely an George Tucker’s appendix to his edition inference drawn from the supposed evil of Blackstone’s Commentaries,*3 a most — tendency of the publication itself, just a

significant place for the repudiation of further means of punishing the excite-

Blackstone on the liberty of the press. Of §ment of unfavorable sentiments against these works, Wortman’s philosophical the government even when the people’s book is preeminent; it is an American contempt of it was richly deserved. Punmasterpiece, the only equivalent on this ishment of ‘“‘malice” or intent to defame side of the Atlantic to Milton and Mill. — the government, concluded Madison, The new libertarians abandoned the necessarily strikes at the right of free disstrait-jacketing doctrines of Blackstone cussion, because critics intend to excite

and the common law, including the unfavorable sentiments.5® Finding crimirecent concept of a federal common law sonality in the tendency of words was of crimes. They scornfully denounced the merely an attempt to erect public ‘‘tran-

no-prior-restraints definition. Said quility ... upon the ruins of Civil Lib-

Madison: “This idea of the freedom of _ erty,’ said Wortman.*9

the press can never be admitted to be the Wholesale abandonment of the comAmerican idea of it’? because a law mon law’s limitations on the press was

inflicting penalties would have the same accompanied by a withering onslaught

effect as a law authorizing a prior against the constrictions and subjectivity restraint. “It would seem a mockery to of Zengerian principles. The Sedition

say that no laws shall be passed prevent- Act, Hay charged, ‘‘appears to be directed ing publications from being made, but against falsehood and malice only; in fact that laws might be passed for punishing ... there are many truths, important to them in case they should be made.’’>4 As society, which are not suspectible of that Hay put it, the “‘British definition’? meant full, direct, and positive evidence, which that a man might be jailed or even put to alone can be exhibited before a court and death for what he published provided a jury.’’®° If, argued Gallatin, the administhat no notice was taken of him before he tration prosecuted a citizen for his opin-

published.55 ion that the Sedition Act itself was


, Liberty and the First Amendment unconstitutional, would not a jury, com- every department and officer hereof, and posed of the friends of that administra- ascribes the measures of the former, howtion, find the opinion “‘ungrounded, or, ever salutary, and the conduct of the lat-

in other words, false and scandalous, and ter, however upright, to the basest

its publication malicious? And by what motives; even if he ascribes to them mea-

kind of argument or evidence, in the sures and acts, which never had exis-

present temper of parties, could the tence; thus violating at once, every

accused convince them that his opinions principle of decency and truth.’’®” were true?’’®! The truth of opinions, the In brief the new libertarians advocated new libertarians concluded, could not be that only “injurious conduct,’ as maniproved. Allowing ‘“‘truth’’ as a defense fested by ‘overt acts’’ or deeds, rather and thinking it to be a protection for free- than words, might be criminally redressdom, Thomson declared, made as much able.6® They did not refine this proposisense as letting a jury decide which was tion except to recognize that the law of

‘the most palatable food, agreeable libel should continue to protect private

drink, or beautiful color.’’®? A jury, he reputations against malicious falsehoods. asserted, cannot give an impartial verdict They did not even recognize that under

in political trials. The result, agreed certain circumstances words may immeMadison, is that the ‘‘baleful tendency”’ diately and directly incite criminal acts.

of prosecutions for seditious libel ‘‘is lit- This absolutist interpretation of the

tle diminished by the privilege of giving First Amendment was based on the now in evidence the truth of the matter con- familiar but then novel and democratic

tained in political writings.’’® theory that free government depends for

The renunciation of traditional con- its existence and security on freedom of cepts reached its climax in the assult on political discourse. According to this the very idea that there was a crime of theory, the scope of the amendment is seditious libel. That crime, Wortman con- determined by the nature of the governcluded, could “never be reconciled to the ment and its relationship to the people.

genius and constitution of a Representa- Since the government is their servant, tive Commonwealth.’’*+ He and the exists by their consent and for their bene-

others constructed a new libertarianism fit, and is constitutionally limited, that was genuinely radical because it responsible, and elective, it cannot, said

broke sharply with the past and advo- Thomson, tell the citizen, ‘““You shall not cated an absolute freedom of political think this, or that upon certain subjects; expression. One of their major tenets was or if you do, it is at your peril.’’®? The that a free government cannot be crimi- concept of seditiousness, it was argued, nally attacked by the opinions of its citi- could exist only in a relationship based

zens. Hay, for example, insisted that on inferiority, when people are subjects

freedom of the press, like chastity, was rather than sovereigns and their criticism either ‘‘absolute’’®> or did not exist. implies contempt of their master. “In the Abhorring the idea of verbal political United States,’’ Madison declared, ‘‘the crimes, he declared that a citizen should case is altogether different.”’?° Coercion have a right to “say everything which his or abridgment of unlimited political passions suggest; he may employ all his opinion, Wortman explained, would vio-

time, and all his talents, if he is wicked late the very “principles of the social

enough to do so, in speaking against the state,” by which he meant a government government matters that are false, scan- of the people.?1 Because such a governdalous and malicious.’’®* He should be ment depended upon popular elections, “safe within the sanctuary of the press”’ all the new libertarians agreed that the even if he ‘‘condemns the principle of wildest possible latitude must be main-

republican institutions ... If he censures tained to keep the electorate free, the measures of our government, and informed, and capable of making intelli-


Leonard W. Levy

gent choices. The citizen’s freedom of justifying the rights of individual exprespolitical expression had the same scope sion and of opposition parties. That the as the legislator’s, and for the same rea- Jeffersonians in power did not always

sons.’ That freedom might be dan- adhere to their new principles does not gerously abused, but the people would diminish the enduring nobility and right-

decide men and measures wisely if ness of those principles. It proves only

exposed to every opinion. that the Jeffersonians set the highest stan-

This brief summary of the new liber- dards of freedom for themselves and postarianism scarcely does justice to its com- terity to be measured against. Their plexity, but it suggests its boldness, legacy was the idea that there is an indisoriginality, and democratic character.73 It pensable condition for the development

_ developed, to be sure, as an expediency of free men in a free society; the state of self-defense on the part of a besieged must be bitted and bridled by a bill of political minority struggling to maintain rights which is to be construed in the its existence and right to function unfet- most generous terms and whose protec-

tered. But it established virtually all at tions are not be be the playthings of once and in nearly perfect form a theory momentary majorities.

Part Four

Law and the Economy in

Ante-bellum America

Recent studies on the relationship vantage point: the policy area that he

between law and the economy in pre— examines is one in which governmental Civil War America have produced a rich action was continuous, explicit, and genharvest of significant reinterpretations erally formulated by policy makers who bearing on governmental institutions, the articulated premises concerning longsubstance of law and public policy, and term social and economic consequences. the legal norms that animated a society Gates’s analysis may be viewed as a case dedicated to rapid economic growth and study of the interaction between governexpansion. Preeminent among the schol- ment and private interests. The reader ars who have developed these new lines will want to examine closely the history of inquiry have been the lawyer Willard that Gates presents to inquire why signifiHurst and the historian Paul W. Gates. In cant (if episodic and weak) efforts at the selection that follows Hurst explores social planning were so readily over- how the law established a framework for | whelmed by private pressures, in the

“the market” in which both individual framework of nineteenth-century

and collective entrepreneurial energies institutions. could operate in the quest for economic The essays by Harry N. Scheiber and growth. Hurst is critical of wastefulness Morton Horwitz deal with two areas of the

and lack of direction — what he terms law in which the courts initiated major

“drift and default’? — in nineteenth-cen- doctrinal changes with far-reaching contury law. He also condemns what he sequences for the development of capitalviews as a pervasive lack of concern with ist institutions and for economic growth.

long-run social costs. But Hurst does In Horwitz’s study, the focus is on the

recognize that there was nonetheless con- transformation of property rights, which

siderable purposeful intervention by gov- he illustrates by the change in water ernment to shape economic change, and rights (riparian law) ‘‘from a static he seeks to analyze as well what he terms agrarian conception ... to a dynamic, a broad popular consensus concerning the instrumental, and more abstract view of

proper role of law. property”’ better suited to a society com-

Gates, in his article on American land mitted to rapid economic development. policy, takes a very different scholarly Scheiber’s study deals with a parallel and 107


Law and the Economy in Ante-bellum America

comparable movement in the law: how tain the vitality of the ‘‘Commonwealth’’ the power of eminent domain was used to concept that bespoke collective goals and take land away from private owners when the common welfare is closely analyzed it was needed for purposes deemed to be in Levy’s study.

of major social importance. In both riparian law and the law of eminent — domain, the legislatures and courts Further Reading abridged vested rights, established priori-

ties for the society, and changed basic Friedman, Lawrence M. A History of rules concerning the privileges and American Law. New York: Simon and immunities that pertained to private own- - Schuster, 1973. Pt. II, chaps. 3-6.

ership. The portrait of nineteenth-century | Handlin, Oscar, and Mary F. Handlin.

law in action provided by Horwitz and Commonwealth: A Study of the Role of GovScheiber runs counter to the long-stan- ernment in the American Economy: Massadard view that American law always hon- _chusetts, 1774-1861. Cambridge: Harvard ored, above all, the sanctity of vested University Press, 1947; rev. ed. 1969.

rights in property; but it is a portrait Hartz, Louis. Economic Policy and Demoentirely consistent with what Gates and cratic Thought: Pennsylvania, 1776-1860 Hurst portray as the pattern of deference (Cambridge: Harvard University Press, and support that nineteenth-century gov- 1948). ernment extended to entrepreneurial Horwitz, Morton J. The Transformation of

interests. — American Law, 1780-1860. Cambridge: HarLeonard W. Levy’s contribution here is vard University Press, 1977.

a summary analysis of the work of the Hurst, James Willard. Law and Social Massachusetts Supreme Court under Process in United States History. Ann Arbor: Chief Justice Lemuel Shaw, one of the University of Michigan Law School, 1960. giants of ante-bellum American law. Mas-_ Kutler, Stanley I. Privilege and Creative sachusetts judges led in many of the Destruction: The Charles River Bridge Case. movements in legal doctrine discussed in Philadelphia: Lippincott, 1971.

these pages. But that state’s court, and Levy, Leonard W. The Law of the ComShaw in particular, also developed pow- monwealth and Chief Justice Shaw. Cam-

erful legal doctrines in support of state bridge: Harvard University Press, 1957. power. How Shaw balanced the powerful Scheiber, Harry N. Ohio Canal Era: A Case claims of individualism against the legiti- Study of Government and the Economy, mate needs of the state to maintain order, 1820-1861. Athens: Ohio University Press,

_ to shape social relationships, and to main- 1969.

Willard Hurst

The Release of Energy

One day in February of 1836, in the until 1839; they might not establish

scarce-born village of Pike Creek on the claims by preemption, for the existing southeastern Wisconsin shore of Lake preemption law expired by limitation in Michigan, Jason Lothrop — Baptist minis- June 1836, and was not immediately

ter, schoolteacher, boardinghouse propri- renewed because of objections to speculaetor, and civic leader — set up on a stump tors’ abuses. These were formidable legal

a rude press of his own construction and obstacles. The settlers’ reaction tells us with ink which he had made himself some basic things about the working legal printed a handbill setting forth the record philosophy of our nineteenth-century of the organizational meeting of ‘‘the Pike ancestors. Jason Lothrop recalled twenty

River Claimants Union ... for the attain- years later:

ment and security of titles to claims on , , Government lands.’’ , Much conflicting interest was manifest

~The settlers whose union this was had between the settlers, from the first, in makbegun to move into the lands about Pike ing their claims. Some were greedy in securCreek beginning in the summer of 1835. ing at least one section of 640 acres for They were squatters; put less sympathet- themselves, and some as much for all their ically, they were trespassers. They might friends whom they expected to settle in the not lawfully come upon the lands before country. Before the lands were surveyed, the federal survey was made, and this was this often brought confusion and disputes

not completed in this area until about with reference to boundary lines, and still February 1, 1836; they might not make greater confusion followed when the Gov-

formal entry and buy until the president ernment surveys were made in the winter of proclaimed a sale day, and Presidents 1835-36. These contentions often led to bitJackson and Van Buren withheld pro- ter quarrels and even bloodshed.

claiming these newly surveyed lands

Roorinted in abridaod fom with pomnisslon of th. The settlers met several times to discuss eprinted in abridged form with permission of the = the need of a more orderly framework copyright holder, Northwestern University, and of aL . | . the author, from James Willard Hurst, Law and the within which growth might go on. Pi nally Conditions of Freedom in the Nineteenth-Gentury their discussions produced a meeting at United States, 1956, the University of Wisconsin Bullen’s store in Pike Creek on February

Press, pp. 1-39. 13, 1836, where they adopted the consti109


Willard Hurst

tution of their Claimants Union. They possession of which our all is depending; created the office of clerk and set the We, therefore, as well meaning inhabitants, , terms on which claims might be recorded having in view the promotion of the interest with him, and they established a board of of our settlement, and knowing the many censors to adjudicate claims disputes. advantages derived from unity of feeling and

Through the turgid grandiloquence of action, do come forward this day, and

their constitution’s preamble shows a pat- solemnly pledge ourselves to render each

tern of attitudes and values which other our mutual assistance, in the protecexplains much about nineteenth-century tion of our just rights... !

law in the United States, reaching to con- .

cerns far greater than those of the tiny Frontier communities have often been

frontier village. described as “‘lawless”’ or at least careless of law. It is too glib a characterization.

Whereas, a union and co-operation of all the True, the Pike Creek story was typical of inhabitants will be indispensably necessary, many in the settlement of the Mississippi in case the pre-emption law should not pass, Valley. From the survey Ordinance of

for the securing and protecting of our 1785 on, squatters settled large areas of

claims; the public lands in defiance of law, ahead

And whereas, we duly appreciate the benefit of official survey, without color of title which may result from such an association, other than that created by the impact of a not only in regulating the manner of making popular feeling that would not be denied. and sustaining claims, and settling dif- At government auctions, they assembled ferences in regard to them, but in securing in force unlawfully to frighten off free outthe same to the holders thereof against spe- side bidding and prevent competition culators at the land sale; and being well from forcing any of their company to pay aware that consequences the most danger- the public land office more than the legal ous to the interests of settlers will follow, if minimum to regularize his holdings. But, such a union be not formed; and as Govern- as at Pike Creek, while they waited for the ment has heretofore encouraged emigration public sale day, these settlers all over the by granting pre-emption to actual settlers, central and midwestern states set up local we are assured that our settling and cultivat- governments in the form of ‘‘claims assoing the public lands is in accordance with ciations,” elected officers with whom to the best wishes of Government; and know- record their land claims and from whom

ing that in some instances our neighbors to obtain decisions of conflicts, and then have been dealt with in an unfeeling man- generally abided among themselves by ner, driven from their homes, their property these records and decisions. Often unlaw-

destroyed, their persons attacked, and their ful in origin, settlement nevertheless lives jeopardized, to satisfy the malignant quickly brought effective demand for law. disposition of unprincipled and avaricious The preamble of the Pike Creek Claim-

men; and looking upon such proceedings as ants Union reflects in miniature two unjust, calculated to produce anarchy, con- working principles by which we organfusion and the like among us, destroy our ized the relations of legal order and social fair prospects, subvert the good order of order in the nineteenth-century United society, and render our homes the habita- States. I speak particularly of “working’’ tions of terror and distrust — those homes, to principles, principles defined and obtain which we left our friends, deprived expressed primarily by action. It is in this

ourselves of the many blessing and privi- aspect that the Pike Creek document is leges of society, have borne the expenses, most relevant to our purpose. For this

and encountered the hardships of a perilous essay seeks to understand the law not so journey, advancing into a space beyond the much as it may appear to philosophers, bounds of civilization, and having the many but more as it had meaning for workaday diffculties and obstructions of a state of people and was shaped by them to their nature to overcome, and on the peaceable wants and vision. Of course, this is not the


The Release of Energy

only viewpoint from which to appraise and promote the release of individual crethe legal order. Nor is law that is formed ative energy to the greatest extent compatlargely by the imperatives of action neces- ible with the broad sharing of opportunity sarily the best law. We are simply trying for such expression. In pursuit of this end, one angle of vision provided by history law might be used both (a) to secure a man for the distinctive reality it may disclose. a chance to be let alone, free of arbitrary

Whatever its limitations, it is a point of public or private interference, while he

view warranted by the central principle of showed what he could do, and (b) to proour legal order, that law exists for the ben- vide instruments or procedures to lend efit of people and not people for the ben- the support of the organized community efit of law. Such a legal order cannot in to the effecting of man’s creative talents,

the long run be true to itself and at the even where this involved using the law’s

same time be better than the values or compulsion to enforce individual

vision of its beneficiaries. Moreover, arrangements. (2) The legal order should : emphasis on ‘‘working”’ principles seems mobilize the resources of the community peculiarly in point when we are trying to to help shape an environment which

understand ourselves. Our history amply would give men more liberty by increasvalidates Tocqueville’s observation that ing the practical range of choices open to we have been a people not given to gen- them and minimizing the limiting force of eral theory. One senses that he is closer to circumstances. The people at Pike Creek

apprehending the decisive faiths and wanted the community to guarantee their beliefs of our nineteenth-century ances- claims to be let alone in working their

tors when he reads these out of what they land and to lend its force to support their did and said as they acted, rather than out dealings with the land, that they might of their self-conscious philosophizing. realize their ‘‘fair prospects.’’ They also

The base lines of nineteenth-century wanted the general government to use its , public policy implicit in the Pike Creek resources positively to enlarge their

document are three. (1) Human nature is opportunities as they sought to “overcreative, and its meaning lies largely in come” “‘the many difficulties and obstructhe expression of its creative capacity; tions of a state of nature’’; to this end they hence it is socially desirable that there be wanted a preemption law or at least some broad opportunity for the release of cre- affirmative legal preference of settlers

ative human energy. (2) Corollary to the over speculators. creative competence which characterizes

human nature, the meaning of life for men If one took at face value some judicial

rests also in their possessing liberty, expositions of doctrines of ‘‘vested

which means basically possessing a wide rights,’ or those economic propositions practical range of options or choices as to which Henry Carey set forth as axioms of what they do and how they are affected by nature, one might believe that law played circumstances. (3) These propositions a minimum positive role in shaping our have special significance for the future of nineteenth-century society. It has been mankind as they apply in the place and common to label nineteenth-century legal time of the adventure of the United States. policy as simple laissez faire, and politi-

Here unclaimed natural abundance cal debate of the last sixty years has pro-

together with the promise of new techni- pagated a myth of a Golden Age in which cal command of nature dictates that men our ancestors — sturdier than we — got should realize their creative energy and along well enough if the legislature pro-

exercise their liberty peculiarly in the vided schools, the sheriff ran down horse realm of the economy to the enhancement thieves, the court tried farmers’ title dis-

of other human values. putes, and otherwise the law left men to From these premises we drew two take care of themselves.

working principles concerning the uses of The record is different. Not the jealous law. (1) The legal order should protect limitation of the power of the state, but


Willard Hurst

the release of individual creative energy order which gave them large autonomy in was the dominant value. Where legal reg- commanding the economic resources on ulation or compulsion might promote the which their influence was founded.

greater release of individual or group Regarded thus as a political institution

energies, we had no hesitancy in making affecting the distribution of power, priaffirmative use of law. Relative to the — vate property involved three central ideas greater simplicity of structure in the Wis- in its English development, to which we

consin community of 1836-1870, for have added a fourth. (1) Since a high

example, there was hardly less readiness value was put on men’s right to be let to use the positive power of the state than alone — to be ‘‘private’’ — there must be a

one sees in 1905-1915 as we usher in the reasonable public interest to justify twentieth century of administrative imposing the public force on individuals’

regulation. activities. This is the substance of what in

However, there is likely to be some — the United States we eventually called basis in experience for every myth. The ‘due process of law.” (2) Such limits as myth of our laissez faire past rests on two government imposed on private freedom important aspects of our eighteenth- and of decision must be declared according to nineteenth-century development: (1) the a legitimate, public procedure, designed central place of the modern institution of to keep law responsive to some influential private property in our politics as well as nonofficial opinion. In our seventeenth-

in our economic organization; (2) the century inheritance this meant that an

extent to which the challenge of the unop- elected assembly should be the chief pol-

ened continent dominated our imagina- icy maker, its supremacy residing in its tion until the last quarter of the last control of the public purse and its author-

century. ity to ask questions about how the execuNineteenth-century preoccupation with tive spent the public money. The original the market as a key social institution led relation of this principle to the rise of the men to think of private property as an idea middle class was underlined by the prop-

almost solely economic in its signifi- erty qualifications set upon the right to cance. But to the men whose bid for vote or hold legislative office, as well as

power formed the working institution of by a traditional distrust of the executive as

modern private property in the seven- the historic source of arbitrary intrusions teenth and eighteenth centuries, property on privacy. (3) The legal order must prowas Chiefly a political idea. To them the vide every man with means to make forheart of the matter was that law should mal insistence that law be applied to him define and guarantee a wider dispersion fairly and impartially. Otherwise crown of the powers of decision in the commu- grants of monopolies to court favorites or nity; this it did by committing to private discriminatory taxes might soon make a

hands legally protected control over the sham of private freedom of action. In bulk of economic resources. Before the modern terms, there must be a guarantee full tide of the disturbing forces we call of the equal protection of the laws for that

the commercial and industrial revolu- framework of reasonable expectations tions, power was tightly held in England. within which alone private property In various combinations at different would be meaningful. (4) Nineteenth-centimes, it lay within a close circle of the tury United States legal growth added the crown and its friends, the established elements of a judiciary given constitution-

church, the military and theggreater and ally guaranteed tenure during good lesser landed men. Commerce and behavior and authority to refuse effect to industry put new means of influence into legislation found by the judges to be

the hands of new men; these consolidated unconstitutional. Ready access to courts their opportunities by achieving a legal so armed added a factor that made itself


The Release of Energy

deeply felt in our further definition of the the growth of a dominant rentier interest,

property principle. merely sitting on its possessions. We did These doctrines defined private prop- not devote the prime energies of our legal erty in terms of a legally assured measure growth to protecting those who sought of autonomy for private decision makers the law’s shelter simply for what they as against the public power. Of course, had; our enthusiasm ran rather to those others than officials could threaten the who wanted the law’s help positively to security of private property; very old rules bring things about. The sign of this was of criminal and tort law remind us that the overwhelming predominance of the property is also the creation of the law’s law of contract in all its ramifications in protection against the intrusions of arbi- the legal growth of the first seventy-five trary private force. But this latter role of years of the nineteenth century. the law was so taken for granted in early The challenge of the unexploited continineteenth-century policy as not to con- nent was the second factor in disguising tribute much that is distinctive; as I have the actual extent of positive resort to law noted, despite easy generalizations about in shaping our society. This was what the “lawless” frontier, nothing is plainer gripped our imagination and what has

than that settlement quickly brought dominated our retrospect upon the cen-

demand for this kind of legal order. Some tury. The generally superficial and hapdevelopments in nineteenth-century tort hazard constitutional debates in the new and criminal law promoted the release-of- states, the early established pattern of

energy policy. Otherwise, concern about wholesale borrowing of statutes from the threat of private power to private older states, the fumbling, trial-and-error property does not bring a fresh element method by which new legislation evolved into our legal history until the late-cen- all testify that we were conscious that we tury interest in railroad and antitrust needed a legal framework, but were impa-

regulation. tient of the time and effort it took to proThe order of events in time thus empha- vide it. After the extraordinary generation sized for the early nineteenth century the of political activity that accompanied and constitutional aspect of private property. followed the Revolution, for most of the

In this context property was primarily a nineteenth century we put little of our bundle of legal limits on the intrusion of creative talent into making the basic official power into nonofficial decision framework of law except in areas which

making; the seventeenth-century drama of we saw most directly contributing to the

conflict with the crown had given a release of private energy and the increase purely negative aspect to the institution. of private options. Politics in the grand However, there was nothing merely nega- sense had been the focus of our creative tive about the tone of life in the nine- energy from 1765 to 1800, when first the

teenth-century United States. This impact of imperial policy and then the

obvious fact alone casts doubt on the ade- novelty of new governments forced us to quacy of an exposition of nineteenth-cen- attend to problems of the organization of

tury public policy which describes it power. With these matters apparently set-

solely in terms of negative propositions. tled, and confronting the challenge of the We were a people going places in a hurry. continent, the nineteenth century was Men in that frame of mind are not likely to prepared to treat law more casually, as an be thinking only of the condition of their instrument to be used wherever it looked brakes. Thus, as we examine further we as if it would be useful. This instrumenta-

find that prevailing nineteenth-century list view tended to put aside considera-

attitudes in fact made private property tion of the larger problems of the

preeminently a dynamic, not a static insti- organization or limitation of power and to tution. Our situation was inappropriate to take for granted the law’s framework-set-


Willard Hurst

ting function to an extent that did not do intrusions of the executive. But legisla-

justice to its actual importance. tures in the United States did not rest on , The substance of what business wanted such well-defined and limited class inter-

from law was the provision for ordinary est as did the seventeenth- and eightuse of an organization through which eenth-century House of Commons. Soon entrepreneurs could better mobilize and repenting of the broad authority given the release economic energy. Partly this busi- legislative branch in our earliest state conness demand was to get rid of a limiting — stitutions, substantial interests pressed

governmental policy; it sought release of successfully for limitations written into the law’s jealously restrictive control over constitutional form and supported the this type of association. But it is charac- courts’ authority to enforce the superiorteristic of the nineteenth century that ity of constitution over statute. A realistic there was here also a demand for positive understanding of the nineteenth century’s help from the law. Merely to be let alone faith in release of energy involves relating to combine capital was not the substance this to the vested-rights doctrine.

of the entrepreneurs’ desire. Here, as so ‘Vested rights’’ sounds like pure often, a lively and pervasive sense of capi- standpattism, as if it connoted merely

tal scarcity, relative to our opportunities, protection of what is because it is,

supplied the dynamic of public policy. because nothing is valued more than staOne did not mobilize and discipline scat- bility. But on the whole, the nineteenthtered resources merely by exhorting gov- century United States valued change

ernment to keep its hands off. more than stability and valued stability

Entrepreneurs wanted the positive pres- most often where it helped create a

tige of the sanction of the state implicit in framework for change. The century so the charter grant. They wanted the aid of highly valued change because imaginaan orderly capital-subscription procedure tion could scarcely conceive that it could under which capital could be fed into the be other than for the better. We may look enterprise on a defined installment plan, somewhat wryly on this faith, but we with provisions for periodic assessments must acknowledge it as a prime fact in of stockholders and forfeitures to enforce our nineteenth-century public policy the assessments. The influence of provi- making. Thus, the more one looks at the sions for the limited liability of corporate lines along which the vested rights docstockholders for the debts of the business trine grew, the less satisfied is he to has perhaps been exaggerated as a source appraise it as a simple expression in of the pressure for incorporation. But, favor of the status quo. Dynamic rather whatever the relative weight of this ele- than static property, property in motion ment, there is no doubt that the grant of or at risk rather than property secure and the limited-liability privilege was sought at rest, engaged our principal interest.

as a positive aid by law to the enlistment We were concerned with protecting

of capital. Entrepreneurs wanted, too, a private property chiefly for what it could form of organization which firmly and do; as one looks at the facts of cases and broadly delegated power over mobilized pays somewhat less attention to the son-

capital to managers and directors. orous language of judicial opinions, he is

We identify no legal development more impressed that what we did in the name sharply with the nineteenth century than of vested rights had less to do with prothe judicial protection of “‘vested rights.”’ tecting holdings than it had to do with

The modern concept of private property protecting ventures. There is no key began with the tradition of the Parliamen- instance where vested-rights doctrine tary Revolution, involving reliance upon protected a simple rentier interest. We a legislative assembly responsive to pro- abolished primogeniture and entail, dispertied interests and armed with powers established the few established churches of purse and inquiry to curb the arbitrary we had, and gave married women control


| | The Release of Energy of their property, all without serious bar- important rentier class. Circumstances rier from vested-rights doctrine. The fed- through the first three-quarters of the eral Constitution forbade the nation or century thus never called for a major test the states to grant any title of nobility. of attitudes toward protecting the status The Northwest Ordinance and the consis- quo simply as such, unless one counts tent policy of Congress under its consti- the issue of slavery as an instance. No

tutional authority to admit new states single neat formula can contain the

together foreclosed development of a pri- whole of the tension between North and vileged old-state class by providing for South or the whole of the moral problem entry of new states out of our western presented by property in human beings. lands and fixing the policy that these be One element in northern support for conadmitted on terms of political equality fiscating the property in slaves was the with the old. The bulk of the nineteen- conviction that slavery had proved to be century cases which developed vested- a system which did not fulfill the proper rights doctrine involved the conduct of property function of generating a con-

business or capital venture, including stantly expanding reach of human creland speculation. The later decisions ative power. Nor should we forget that which protected freedom of contract, or Lincoln drew the ultimate issue as the entrepreneurs’ freedom, as a “‘liberty’’ preservation of Union, whether any parguaranteed by the Fourteenth Amend- ticular form of private property stood or ment were only the most explicit indica- fell. tors of the main current of our concern Of course, there were decisions, and for vested rights. Looking back from a there was much judicial language, lookmid-twentieth-century United States ing to the protection of property consid-

characterized by steady expansion of one ered simply as a claim to the

form or another of securities holdings maintenance of what someone had or the among the upper middle class, one might situation he was in. But it is important to see the Income-tax Decision (1895) as an note that the main current ran to the proexpression of rentier interest. But in its tection of property in action, for othercontemporary context the major signifi- wise we may be surprised by some of the cance of the decision was for large-scale limits the nineteenth century put on pro-

_ capital formation and the shape of big tection of vested rights. A Wisconsin business. The principal nineteenth-cen- Supreme Court opinion of 1860 expresses

tury vested-rights cases, which protect the period’s central concern with the

property simply as a claim to hold onto safeguarding of venture capital. Asked to what one has, are those concerning the overrule an 1849 decision which had susvaluation of property in eminent-domain tained the constitutionality of the millproceedings. Even these rest less on pro- dam act, the court refused, though it tection of vested rights as such than on a indicated that as an original matter it

kind of insistence on equal protection of would not now sanction the statute, the laws — that a particular individual which in effect delegated the power of should not be made to bear out of his eminent domain to waterpower developown resources the cost of a community ers who wished to flow others’ land.

benefit.” Since the 1849 case, said Justice Cole, it Nineteenth-century vested-rights doc- was fair to assume that large amounts of trine developed chiefly in relation to pro- capital had been invested in reliance on it. tection of venture capital and the limited

autonomy of business because through And, although the period has been commost of the century we were scarce of paratively brief since the (1849) case ... capital and of necessity were preoccu- was decided, yet we all know that within pied with opening up the continent. We that time enterprising towns and flourishhad neither the means nor the time for an ing villages have grown up, whose wealth


Willard Hurst

and prosperity are mainly dependent upon in life, liberty, and property. Bankrupt laws, their hydraulic power, and whose business whatever may be the form they assume, are relations and industrial resources would be of that character.°® seriously affected, if we were now to over-

rule that case... The rule stare decisis, has Likewise valid, if they were not too great force in such a state of things, and drastic, were laws which stayed a credi-

emphatically applies.4 tor’s remedies to afford the debtor a breathing spell in which he might

Because it most valued private prop- regather his strength. Again a test was

erty for its productive potential, the nine- whether the regulation would tend reateenth century was prepared to make sonably to preserve the general course of strong, positive use of law to maintain dealing. Mr. Chief Justice Dixon put it so such conditions as it thought essential to for the Wisconsin court in sustaining an

the main flow of private activity. Bank- 1858 statute extending the time in

ruptcy law began mainly as a protection foreclosures: to creditors against the dishonesty of debtors. But by the mid-nineteenth cen- Although such changes are in general tury, both in national bankruptcy laws exceedingly unwise and unjust, yet if from and in state insolvency legislation, the sudden and unlooked-for reverses or mistrend of policy was as much to provide fortune, or any other cause, the existing means by which debtors might be saved remedies become so stringent in all or a from irretrievable ruin and salvaged as particular class of actions that great and venturers who might yet again contribute extensive sacrifices of property will ensue, productively to the market. ‘“‘The dis- without benefit to the creditor or relief to

charge of the debtor has come to be an the debtor, a relaxation of the remedies object of no less concern than the distri- becomes a positive duty which the State

bution of his’ property’? under federal owes to its citizens.”

: bankruptcy policy.> The contract clause of the federal Constitution prevented Of broader but analogous policy import

state insolvency laws from discharging = were other familiar nineteenth-century debts contracted before their enactment. rulings that vested rights must yield But no contract clause limited the federal before government action to maintain the bankruptcy power. The Fifth Amend- general framework of dealings. The com-

ment might bar destruction of a creditor’s munity might take for a public highway a

security interest in specific property bridge owned by a private corporation

acquired before passage of a bankruptcy under a legislative franchise given long law, but there was no taking of property before the applicable eminent-domain without due process of law in employing statute was passed; here was no impaira bankruptcy act to discharge debts con- ment of the obligation of contract, for tracted before the law went on the books. every contract is made subject to exercise

, of the framework-setting powers of gov-

In no just sense do such governmental regu- ernment.® Likewise the contracts clause

lations deprive a person of his property was held not to limit the general power without due process of law. They simply to tax or the police power.? Most drastic require each individual to so conduct him- in application to existing commitments

self for the general good as not unneces- and expectations was the holding that

sarily to injure another... Every member of Congress might provide for the issue of a political community must necessarily part paper money and make it legal tender for with some of the rights which, as an indi- debts previously incurred. 1° vidual, not affected by his relation to others, It was natural to its buoyant optimism

he might have retained. Such concessions and its confidence in the release of

make up the consideration he gives for the energy that nineteenth-century law couobligation of the body politic to protect him pled concern for vested rights with a


, The Release of Energy high regard for keeping open the chan- If this court should establish the principles nels of change. This was one aspect of now contended for, what is to become of the bankruptcy and insolvency laws. It is the numerous railroads established on the a viewpoint implicit in the type of deci- same line of travel with turnpike compa-

sions just noted, in which judges were nies; and which have rendered the fran- alert to protect the community’s author- chises of the turnpike corporations of no ity to deal with shifting conditions affect- value? Let it once be understood that such ing the functional integrity of the whole charters carry with them these implied consystem. The classical statement of policy tracts, and give this unknown and undein favor of freedom for creative change as fined property in a line of travelling, and against unyielding protection for existing you will soon find the old turnpike corporacommitments was Taney’s opinion in the tions awakening from their sleep, and call-

Charles River Bridge case. Public grants ing upon this court to put down the should be strictly construed in favor of improvements which have taken their the public; nothing should pass by impli- place. The millions of property which have cation; hence the legislative grant of a been invested in railroads and canals, upon

franchise to build and operate a toll lines of travel which had been before occubridge should not be held by implication pied by turnpike corporations, will be put to give the grantees an exclusive charter, in jeopardy. We shall be thrown back to the

so that they might prevent the building improvements of the last century, and

of a nearby competing bridge under a obliged to stand still, until the claims of the

later grant. old turnpike corporations shall be satisfied, and they shall consent to permit these In a country like ours, free, active, and States to avail themselves of the lights of enterprising, continually advancing in modern science, and to partake of the bene-

numbers and wealth, new channels of com- fit of those improvements which are now munication are daily found necessary, both adding to the wealth and prosperity, and for travel and trade; and are essential to the the convenience and comfort of every other comfort, convenience, and prosperity of the part of the civilized world.4!. people. A State ought never to be presumed

to surrender this power [of promoting the The uniform legislative reaction to the happiness and prosperity of the communi- Dartmouth College case made it clear that

ty], because, like the taxing power, the Taney expressed the dominant mid-cenwhole community have an interest in pre- tury preference for property as an institu-

serving it undiminished... No one will tion of growth rather than merely of

question that the interests of the great body security. With little question or excepof the people of the State, would, in this tion, in the very act of providing fran| instance, be affected by the surrender of this chises for private capital development, great line of travel to a single corporation, state constitution makers and legislators

with the right to exact toll, and exclude developed the practice of including in competition for seventy years. While the their grants a standard reservation of rights of private property are sacredly legislative authority to amend or repeal guarded, we must not forget that the com- what they gave. Governors’ vetoes enforcmunity also have rights, and that the happi- ing this policy made explicit its prefer-

ness and well being of every citizen ence for retaining maneuverability in the depends on their faithful preservation. face of an always evolving situation. Thus, in 1882 Wisconsin’s Governor The preference for dynamic rather than Rusk vetoed a dam franchise given to static property, or for property put to cre- named individuals because the statute did ative new use rather than property con- not include a reserved power of repeal or tent with what it is, emerges in Taney’s amendment analogous to the reservation further description of the policy choices which the state constitution made as to

implicit in the case: all grants to corporations. His message


Willard Hurst

mingles characteristic policy tones of the of the century particularly reflects this; in century: law must provide a framework the latter half, simple social mechanics, within which many may venture, rather the force of stubborn facts, began to bring than a favored few, and it must take care — law into contact with a wider range of

that future release of creative energy is concerns that those immediately

not barred by the rigidity of old economic.

concessions: General policy, expressed in practice more often than in formal declaration, The improvement may be for the public favored the release of individual creatigood, the tolls fixed may be fair and reason- vity in areas of life apart from the market. able, but nearly all such measures affect the But the law played a quite indirect role

interests of many who know nothing of in this. So far as colonial laws set limits

their pendency and are unheard as to their on men’s freedom to choose their religion effect. In the nature of things it is impractic- or to gather with their fellows in sociable able for the legislature to make thorough groups or to set their personal patterns of and exhaustive investigation in each case, expenditure and their personal choices of

and to know the precise effect upon all pleasure, these were largely repealed or interests of the measures asked for. More- fallen into disuse amounting to practical over, what may be an improvement in the repeal by the end of the first quarter of situation of affairs to-day, may be very far the nineteenth century. Where there was from an improvement a few years hence; formal legal action to remove old limita-

and what may be fair compensation for tions, as in the disestablishment of maintaining dams and other public churches, it is difficult to believe that law

improvements to-day, may not be fair or brought about the change, rather than ratreasonable after the lapse of time. So that ifying changes produced by social facts the public interest would seem seriously to — by our fluid class structure, our abun-

demand that the legislature in all such dance -of land, our growing population

grants should reserve to itself the right, with its recurrent waves of immigration.

should the public interest require it, to The most important nineteenth-century revoke the same, or to continue them upon uses of law in relation to social problems

new terms and subject to additional involved the control of the general envi-

restrictions. 12 - ronment. So far as it concerned the simple release of individual energy in social

To this point, I have sketched the affairs, law had its principal influence in

release-of-energy policy almost entirely the tolerance, protection, and sometimes

in terms of the relation of law to the fostering, of associations of all kinds.

economy. This accords with the empha- Legally assured freedom of religious sis which the times gave this policy. It association was in the background of one was a century which put all the energy of the most dynamic elements of the first | and attention it could into economic half of the century: the evangelical Prointerests, Politicians might concern testant movement in the rural areas, espethemselves with the sectional balance of cially on the frontier, whose credo of power and humanitarians with slavery individual dignity generated much of the and drink and the rights of women. From emotional fervor of agrarian politics. time to time the zealous minority inter- Freedom of association let loose another ested in these matters could whip up a dynamic factor for individualism in the general, emotional reaction to them. But abolitionist societies. Liquor control

in most affairs one senses that men became a fighting issue because there

turned to noneconomic issues grudgingly could be temperance societies; liquor and or as a form of diversion and excitement suffrage both came into the arena because

or in spurts of bad conscience over neg- women could organize groups on such lected problems. The law of the first half public issues before they were able to


, The Release of Energy vote or to manage property. Outside the Political freedom for individuals

economic area religion was involved in involves other civil liberties besides the the most serious conflicts over free asso- right to vote: rights of free speech, press, ciation, in controversies over Masonic = assembly, and petition, and of access to lodges, Catholic convents and schools, and enjoyment of the proper procedures

and Mormon communities. These figured of the civilian courts. The Alien and in local and national politics in rather Sedition Acts, the Civil War and Reconsporadic bursts of attention. Some legis- struction, and the conflicts over labor lation went on the books regulating organization late in the century produced secret societies; some additions were the notable problems on these fronts. The made to that pragmatic store of prece- enforced lapse of the Alien and Sedition dents which constitutes our policy of Acts was the clearest substantial victory ‘separation of church and state’’; some of the century for the release-of-energy serious violence reminded us that effec- principle in these fields. The great civil tive civil liberty requires the positive pro- liberties decision arising out of the Civil

tection of law. In the first half of the War — Ex parte Milligan — came after century these matters have significance the crisis that produced the issue had primarily as parts of our history of mid- abated. The transfer of political leaderdle-class morals and values, and of popu- ship from Radical Republicans to men

lation growth and immigration; they whose prime interest was in economic involve legal history only indirectly. growth, and the acquiescence of the

Freedom in political activity expressed Supreme Court in this direction of pola number of important public policies, icy, ended for the nineteenth century any besides promoting release of the individ- aggressive program in law to implement ual’s creative energies. Political partici- the liberty granted the Negroes in the pation is relevant to social interest in South. No firm precedent for individual human dignity, in the legitimacy and dis- liberty emerged from the labor difficul-

tribution of power, and in the simple ties of the end of the century except insoadministrative necessity of getting ques- far as Altgeld’s courageous pardon of the

tions settled. But, among these other Haymarket anarchists asserted the fundaobjectives, a continuing inheritance from mental importance of a fair and temper-

Jefferson was the faith that broad popular ate trial process. More typical of the - political activity would multiply fruitful indecisiveness of the law’s role in civil thought, insight, invention in public liberties in those years was the flamboy-

affairs to the general benefit. ant resurrection of an obsolete theory of

The removal of property qualifications “treason” to indict leaders of the Homeon voting or holding office was the out- stead strike, followed after a time by a standing action in law to set free men’s quiet dropping of the charges. political energies. The current set firmly The nineteenth century produced some in this direction as early as the New York important issues for individual civil constitutional convention of 1821, where liberties, but showed no impressive the aged Kent futilely opposed it. In the record of grappling with them. It is symnewer states white male suffrage was not bolic that the most decisive eposide, the a serious issue, but the vote for free controversy leading to the nonrenewal of Negroes, for immigrants, and for women the Alien and Sedition Acts, came at the stirred controversies throughout the cen- opening of the century, in our classic tury. Emancipation of the slaves brought generation of high politics. There is little

problems which called for positive that happens after 1800, until the

implementation in law, if political free- Holmes-Brandeis dissents begin to build dom were to be real, and which remained a supporting body of opinion in the as unresolved civil liberties issues of the 1920s, to suggest the presence of a really

nineteenth century. _ substantial public opinion interested in,


, Willard Hurst and prepared to pay the costs of, support- nineteenth-century public policy. This ing individual civil liberties. It would principle found expression in no simple distort the view of our nineteenth-cen- removal of legal restrictions or staying of

tury life to say that it embodied any sub- the regulatory hand. Limitations on offistantial, defined hostility to individual cial power were very important elements

political freedoms; the accepted and of this pattern of policy. But so, too, was revered political generalities all exalted a complicated affirmative use of law to individual liberty. But the century was so furnish instruments and procedures and market-focused as to be politically naive. to impose as well as enforce patterns of Its prevailing attitudes tended to range dealing. In this aspect, our nineteenthfrom indifference to impatience with century policy involved a good deal less matters that distracted attention from of simple laissez faire than has often been “progress,” defined as increase of capital claimed for it. Joseph Spengler has propand consumable wealth. Toward the end erly cautioned against exaggerating the of the century the right of association extent of legal intervention in the econtook on high importance in practice, but omy by way of regulatory laws: such govthis was felt then more as a matter of ernment operations tend to leave a larger redressing the general balance of power residue of records, especially in compariin the society than as an issue of individ- son with the relatively simple, nonualism. All this is part of our inheritance, bureaucratized business of the early part along with the Bill of Rights. One could of the century; moreover, in their nature

not be certain how different was the such intervention and the advocacy of alignment of working belief on the value such intervention are more likely to leave

of individual civil liberty in the mid- positive records of initiatives taken or

twentieth century, except that in the later proposed than is the advocacy of a negatime we were more impatient with what tive position.!* It it true, however, that | distracted from attention to ‘‘security”’ we made considerable use of legal com-

than we were with interruptions to ‘“‘pro- pulsion to meet the challenge of our gress.” At least in the 1950s, however, environment and that by no means did the weight to be placed on individual we always treat the release of energy as civil liberties was recognized as a major — wholly beneficient. When these regula-

political issue; in that respect, the situa- tory uses of law are taken together with

tion stood in marked contrast to that of the framework of legal compulsion

most of the nineteenth century. within which the regime of contract

Belief in the release of private individ- operated, it is plain that while the ual and group energies thus furnished enlargement of men’s freedom was the one of the working principles which give objective, it was, indeed, freedom under the coherence of character to our early- _ law.

Paul W. Gates

An Overview of American Land Policy

In attempting to present an overview of ' vided in the Land Ordinance of 1785 a American land policy I propose to discuss plan for the management and sale of the in the most general terms the acquisition land. Though the power to own, manage, of the public domain, the fundamental grant, and otherwise dispose of the public constitutional questions relating to it, the lands was to be one of the most nationalizdivergent points of view of the older ing factors in the life of the federal repubstates and the newly developing West, the _lic, that power received slight attention in

double effect of the various policies the new Constitution of 1787. It is con-

adopted, and the prevailing belief, at least § fined to twenty-six words in Article IV,

until fairly recently, that the federal gov- section 3: ‘‘The Congress shall have

ernment should divest itself of the owner- Power to dispose of and make all needful ship of public land and get it into private Rules and Regulations respecting the Terhands. Finally I hope to show that many __ritory or other property belonging to the

of the old disputes about our public-land § United States...”! But more detailed policies are still unresolved and that we powers and restrictions had previously | are, in a sense, back to square one. been agreed to during the period of the ‘Philadelphia, the center of government Confederation.

in 1787, was host to the Constitutional Virginia had ceded her western-land Convention which met in Independence claims in order to secure Maryland’s

Hall while, simultaneously, the Congress accession to the Articles of Confederation. of the Articles of Confederation was meet- But Virginia had imposed two restricing in Carpenters’ Hall writing the North- tions. First, the lands were to be ‘‘consid-

west Ordinance to provide government ered as a common fund for the use and for the territory north of the Ohio. After benefit of such of the United States as

many disputes and petty jealousies had have become, or shall become members of been composed, Virginia, Massachusetts, the confederation or federal alliance of the and Connecticut had surrendered to the said States, Virginia included, according

national government all or parts of west- to their usual respective proportions in ern land claims and the Congress had pro- the general charge and expenditure, and

| shall be... disposed of for the purpose,

Reprinted from Agricultural History, vol. 50, no. 1 and for no other purpose whatsoever . . .”’ (January 1976), 213-229, by permission. Copyright © Second, the ceded territory should be

1976 by the Agricultural History Society. divided into states and admitted into the 121

Paul W. Gates , 122

Union with “the same rights of sover- ungranted land within its present bound-

eignty, freedom and independence as the aries and did not cede its western-land other States.” In accepting Virginia’s act claims until 1802.4 Sovereignty was asso-

of cession, Congress resolved that it ciated with the ownership of ungranted should be “‘recorded and enrolled among lands within a state’s boundaries, yet this

the acts of the United States in Congress right was to be denied to new states

assembled.’’? Thus it was established that created out of the public lands. The pubthe public lands were the sole property of lic-land states were never to forget this

the United States, that any income limitation upon their sovereignty, and

derived therefrom was to be shared by all their representatives were to devote themthe states in proportion to their represen- selves to rectifying the situation while the tation in Congress, and that the new states original states continued to maneuver to were to have the same rights as the origi- induce Congress to carry out the pledge it

nal states. had made to Virginia that the benefits

In the Northwest Ordinance of 1787 arriving from the public domain should

Congress declared: ‘‘The legislatures of be shared by all the states in proportion to these districts or new States, shall never their federal ratio.

interfere with the primary disposal of the Notwithstanding the restrictions

soil by the United States... nor with any imposed by the Virginia Act of Cession, regulations Congress may find necessary, Congress had provided in the Land Ordifor securing the title in such soil, to the nance of 1785 that section sixteen in each bona fide purchasers. No tax shall be township, or one thirty-sixth of the land, imposed on lands .. . of the United States; should be reserved for schools.5 It thereby and in no case shall non-resident propri- established a precedent for the continued

etors be taxed higher than residents.”’ violation of the principle that the public Despite these limitations upon the sover- lands were being held for the benefit of all eignty of the new states, and the greater the states. When, subsequently, Congress one which barred slavery, Congress stated made one grant after another to the westin that same ordinance that the new states ern states, resentment in the older states should be admitted into the Union ‘‘on an intensified. The Virginia Act of Cession equal footing with the original States, in was not the only basis for their claim that

all respects whatever...’? These and the benefits of the public domain should other inconsistencies and ambivalent be shared by all. Equally important was positions respecting the public lands the fact that the Revolution had been won were to have a major bearing on the ques- by all thirteen original states at much cost

tion, Whose public lands? to themselves and that the cession of terri-

The Congress of the Confederation had tory made by Great Britain had been made

found it difficult to resolve questions to the United States. relating to the public lands over which it Thus there developed two major divi-

had thus obtained jurisdiction because sions of opinion on public-land questions. each of the thirteen original states had The one concerned with the sharing of the retained such ungranted or forfeited lands land or its benefits among the states as remained within their boundaries as became essentially an East-West conflict they exist today. In addition, Massachu- between the thirteen original states, who setts had retained ownership of present- were supported after a time by some of the day Maine and still held a large portion of older public-land states. They were western New York; Connecticut retained opposed by the newer public-land states its western reserve in northeastern Ohio; who felt that the land should be theirs and

New York still had many ungranted as their resources produced income it lands; Virginia retained, until 1792, pub- should be reinvested within their bounda-

lic land in present-day Kentucky; and ries. The second division was similarly Georgia had the greatest amount of sectional, and even more political, with


An Overview of American Land Policy

the more conservative eastern states wish- _ had proved to be the principal attraction ing to prevent the public-land states ofthe — to settlers from the Old World.® By 1790 West from drawing population away from _ the population of the United States was

the East, thereby reducing its congres- already 40 percent of that of Great

sional representation and also affecting Britain.” land values and employment costs in the After the Revolution neither of these

~ older area. , colonial precedents was at first to be folHow was the public domain to be dis- lowed. The egalitarian ideas of the time, posed of? In considering this question the the growing hostility between the owners Congress of the Confederation and later of large estates and their tenants, and the Congresses had the experience of the financial needs of the federal republic suf-

mother country and of the thirteen colo- ficiently account for the fact that the

nies to draw upon. During this long United States did not make extensive period of 180 years, great estates of mil- grants of land to influential people (it did

lions of acres had been granted to the make large sales to two influential

Penn, Calvert, Fairfax, and Granville fami- groups), but neither did it adopt the head- , lies and smaller holdings, ranging in size right system with its free grants to free from a few thousand to several hundred men. The public domain was needed for thousand — even a million — acres had other purposes. been bestowed on many more influential Alexander Hamilton was anxious that persons. These estates were farmed by the public lands should provide revenues tenants who paid their landlords both for the heavily indebted young nation. By rents and services. By the close of the Rev- an act of 1790 the income from land sales

olution the largest of these estates had was pledged solely to payment of the been forfeited or confiscated, and there nation’s debts. Hamilton expected that had been a considerable division of prop- speculators and land companies would be

erties into smaller holdings for sale, the principal buyers and that they would although these changes were far from rev- then retail the land to actual settlers. At olutionary. Some proprietors who had the outset, then, Congress created a wideeither evaded taking a stand in the Revo- open land system with no limitation upon lution or who had wisely opted for rebel- the amount of land individuals could buy.

lion, managed, like the Schuylers, Not until the mid-nineteenth century

Livingstons, and Van Rensselaers of New were any limitations to be placed on purYork, to retain their holdings. Despite the chases, and these proved quite ineffective.

radicalism of the Declaration of Indepen- Questions concerning the pricing of dence and the agrarian uprisings of the land, the speed at which it should be surtime, the period of the Confederation was veyed and opened for settlement, and the marked by the establishment of additional treatment to be meted out to squatters large private holdings, by Massachusetts who had helped themselves to the public in its New York lands, by Virginia in Ken- domain soon created that second funda-

tucky, and by Tennessee and Georgia, mental division of opinion between East which all distributed their lands in the and West previously referred to. Hamilton most profligate manner. However, estate had hoped for prompt sale of the public making was paralleled in the southern land in large blocks. Later, the conservacolonies by the headright system, and in tive attitude toward the public lands, New England the proprietors’ grants were favored by Henry Clay and, during his soon divided. Consequently freemen in early career, by Daniel Webster, was that good standing with the authorities were the lands should be surveyed and opened able to acquire small tracts of land, and, to settlement only when older areas had generally speaking, the larger holdings been well taken up and improved and the were interspersed with small farms. The land should be offered at prices that very liberality of the various land systems would not tend to draw farmers away


Paul W. Gates from these older areas since their leaving Henry Evans and Horace Greeley who saw

might adversely affect land values and in the public lands the means of alleviatalso the wages of labor. Moreover, slow ing the lot of eastern workingmen. But not extension of surveys and opening the land until 1866 was the principle of land limi-

to settlement would facilitate compact tation adopted, and then only for the five growth, keep management costs down, southern states of Arkansas, Alabama, and ensure the early introduction of Florida, Louisiana, and Mississippi. Some roads, schools, churches, and local gov- congressmen supported the act more as a ernment, and mean good order. But west- punitive than a reform measure. George ern pressure groups advocated the speedy W. Julian, an Indiana congressman and opening of new land, the conservative the most realistic of the land reformers, policy was breached, the thinly main- hoped that by limiting the forty-six miltained barriers were broken. The frontier lion acres of public lands remaining in of settlement advanced from Florida to these states to homestead entries of no Louisiana, and up the Mississippi to more than eighty acres it would be possi-

Arkansas and Missouri, and from Ohio to ble to provide farms for the freedmen and Illinois to Michigan, and new territories landless whites. Unfortunately the lands

and states were created. Soon population available for entry under the Southern

reached Utah territory, the Oregon Homestead Act were covered with long-

country, and California. Before long the leaf pine or were sandy barrens not well Superintendent of the Census was deplor- adapted to farming. The poorer class and ing, with a little less than accuracy, that the freedmen received little benefit from the frontier was gone. The Webster-Hayne the act. Upon the insistence of southern argument about what section had done congressmen, who felt that the measure more for the West was futile, for it was the was a shameful discrimination, it was new West, with its vigorous restless repre- repealed in 1876.° sentatives, that had demanded the reduc- Although the Homestead Act of 1862 tion of all barriers and the elimination of was for a time an outstanding success in the Indians from any area attractive to | enabling many thousands of settlers with whites, and they had been successful in little capital to become farm owners, the wresting from reluctant representatives of development of large properties continthe older states concessions in the price of ued even after this fundamental change in land and in the terms of purchase. They policy. Its effectiveness in contributing to obtained a general prospective Preemp- the creation of farms was limited by the

tion Law for the protection of squatters |= abuse of the settler laws, the use of

and a Homestead Law, subsequently sup- dummy entrymen, the continuation of the plemented by additional legislation that cash-sale system, and the extraordinarily made free homesteads of various sizes generous sharing of the public lands with available to settlers who complied with the railroads and the states which did not

specific requirements. allow free homesteads on their part. Not

The sales policies that were in force unit] 1888-1891 did Congress get around everywhere up to 1862 and in areas pre- to adopting a general limitation of 160 viously declared open to sale until 1889, acres upon land entries, by which time

plus the government’s practice of reward- 365,000,000 acres or an area ten times the

ing veterans with bonuses of land, not size of Illinois were not open to homecash, had the dual effect of creating both steading and an additional 50,000,000 small properties and numerous extensive acres had passed into the hands of specu-

speculator holdings, the latter often of lators waiting for the rise in the value of _

choice land. The result was the develop- their holdings.1°

ment of a strong antimonopolist feeling in The federal government’s control of the the West and a land reform movement in public domain has been a major factor in

the East, initiated by men like George shaping federal-state relations. From the


An Overview of American Land Policy

outset the new states learned to respect of public land to the states would increase the powers of the national government the value and hasten the sale of the land

and to look to it for assistance. When a that was retained. Yet, despite federal

new state was admitted into the Union it generosity, the attitude of the West on the was required to write into its fundamental public-land question remained ambivalaw the famous clause, irrevocable with- lent. The western states benefited from out the consent of the United States, dis- federal policy and resented it, because

claiming all right and title to the public land within their borders was not

unappropriated lands, including the right all their own to manage as they saw fit.

to tax them, and declaring that the public By sharing portions of the public land lands “‘shall be and remain at the sole and with the states the federal government entire disposition of the United States,” obliged them to create their own landthat nonresident-owned land should administering agencies. At the outset the never be taxed higher than resident- public-land states were under heavy presowned land, and that public land, when sure to make their lands available to sold, should be exempt from taxation for settlers or other buyers as speedily as posfive years. This practice was begun with sible. They gave little attention to the pos-

the admission of Ohio in 1803, made more sibiliy of withholding the lands for explicit with the admission of Louisiana higher prices so that they would more in 1812, and somewhat modified by the adequately serve the purposes for which omission of the tax-exemption clause they had been granted. Later on, states when Michigan was admitted in 1837.1 were less prodigal in their management The western states detested these policies and were to obtain larger endow-

infringements on their sovereignty, which ments for schools and universities. One meant that they were not being admitted could say that by the twentieth century to the Union on the same basis as the orig- most of the newer states were doing about inal states, but, anxious for statehood, as well with their lands as the federal govthey accepted them.’? Besides, what the ernment, some even better. Local control federal government took away with one over portions of their resources did not

- hand it began returning with the other. always mean that the newer western

New states received the sixteenth section states permitted self-seeking interest to in each township for schools, as the Land dictate improvident management and Ordinance had provided, and also land sales policies. Indeed, in the twentieth for seminaries and a university, the salt century the great giveaway has been more springs, and 5 percent of the net proceeds characteristic of federal than of state from the sale of public lands within their policies. borders for construction of roads. As time At the outset the grants for railroads went on, increasingly generous grants were made to states which either underwere made to states on their admission or, took construction of the lines themselves subsequently, for education, for the drain- or conveyed the land to private corporaage of wetlands, and for the construction tions. In either case, the state had prime of roads, canals, or railroads. Few factors jurisdiction over them. When interstate had a greater influence on breaking down transcontinentals were planned in the states-rights’ parochialism than the fed- 1860s, Congress granted the land directly eral government’s practice of sharing the to the corporation, which meant that the public lands and the income derived from states could not regulate these railroads, them with the states. The West learned to could not tax their lands until they had look to Washington for assistance with been sold and the title conveyed to indiprojects it could not yet afford. Constitu- viduals, and could not compel forfeiture tional limitations on the power of the fed- of unearned grants so as to open the land eral government to undertake them were to homesteaders. The railroad mileage of evaded with the argument that these gifts the country increased from 9,021 in 1850


Paul W. Gates

to 123,320 by 1895. I have not tried to native Virginian, who regarded the terms determine what proportion of this mile- of the Virginia cession as binding on the age was built with the aid of land grants. government, brought forth a bill to disIt included most of the main lines of the tribute the net proceeds from the sale of Union Pacific, the Southern Pacific, the the public lands among the states in proSanta Fe, the Burlington Northern, the _ portion to their federal ratio and with a Rock Island, the Northwestern, the Mil- special bonus allowed to the states in waukee, the Illinois Central, and the Mis- which the land was sold. Jackson vetoed

souri Pacific. Six new states were it.16© The older states then prepared an admitted into the Union between 1850 alternative to Clay’s distribution plan. and 1885. All the rest of the West was This was the act which directed that the divided into rapidly growing territories, federal surplus, largely derived from pub-

from which seven states had been admit- lic-land sales, be deposited with the ted to the Union by 1896. The construc- states, strictly in proportion to their fedtion of the railroads and the colonization eral ratio. It became law and was in opera-

work they carrried on played a vital part tion only a short time before it was in this rapid development.!? Altogether suspended. an area about the size of Texas was A third effort of the older states to share granted for railroads. The Association of in the proceeds from western-land sales American Railroads has long devoted reached enactment in the Distribution Act much time and energy to an attempt to of 1841, but to win support for its adopconvince the country that the grants were tion they had to accept features they

mostly of mediocre land.14 They did detested: allowing general prospective include desert land, poor grazing land, preemption of settlers on public lands and barren mountain tops. But they also before the public sale and granting

included choice corn-belt land in Illinois, 500,000 acres of land to each public-land Missouri, Iowa, and Nebraska, and excel- __ state for the building of internal improve-

lent wheat land in North Dakota, Mon- ments. Distribution lasted for but a tanta, and Colorado. Some of the richest moment, but the western gains were and most heavily timbered lands in Wash- permanent.

ington and Oregon passed to railroads, as In the 1850s, when Congress was did oil- and coal-bearing lands today granting lands lavishly to the western

worth billions of dollars. Much of the lat- states for railroads and swampland drainter they still retain (or at least the subsur- age and was doubling its grants to new face rights to such land), although the states for public schools, representatives

public transportation services these from the non-public-land states came

railroads were supposed to supply have forth with proposals that they should

dwindled away.'* share directly in the public lands. One Representatives of the original thirteen measure, which passed the House but not states became resentful of the liberality the Senate, would have given 29,250,000

with which Congress was sharing the acres to the non-public-land states for

public domain with the western states, public schools; the Dix bill, which easily building them up with grants for roads, passed Congress but was vetoed by Presicanals, and railroads which the older dent Pierce, would have given every state states had had to provide for themselves, large grants in proportion to their size and drawing their farmers and their labor and population for the improvement in away to the cheaper and more fertile lands the case of indigent insane people; a of the West. The older states recalled that third measure, the Morrill Land Grant it had been agreed that the public domain College Act of 1862, gave 30,000 acres of should benefit all the states. It was theirs land or scrip (land-office money) for each too, was it not? They were determined to senator and representative to which it get their share. In 1832 Henry Clay, a was entitled for the establishment of col-


An Overview of American Land Policy

leges of agriculture and mechanic arts. other eastern senators had previously This marked the high tide of the move- — advanced. It would have required all the

ment for the older states to share in the net proceeds from the public lands, after

public lands. Since it could not be certain deductions, to be invested and argued that grants for agricultural col- the earnings to be distributed among all leges would increase the sales value of the states for education according to their

the remaining public lands, as the federal ratio. In the end Morrill con-

railroad grants had been expected to do, cluded that it was wiser to ask for half a it is obvious that the Land Grant College loaf then to risk all. He therefore substi-

Act was a practical recognition and tuted for this proposal his second Morrill application of the principle of the Vir- bill which Congress, in great relief,

ginia cession and a strong step toward a adopted. By 1890 Congress had moved more liberal interpretation of the con- far and broken down many barriers in

stitutional powers of the federal supporting agricultural experiment sta-

government. , tions and in instituting annual appropriaUnfortunately, many of the new col- tions for state colleges. At the same time

leges were to find they had not the Congress had prevented the older states resources to support research in the from tying up the entire revenue from

newer agricultural sciences. Farm lead- public lands for which it was shortly to ers,‘realizing the inadequacies of the new advocate a purely sectional use.

institutions, moved on a broad front to One of the aspects of past American secure more federal aid for them. The land policies that is giving us trouble agricultural-college scrip given to the today is the manner in which land has

landless states of the East had entitled been acquired from the Indians. Colonial them or their assignees to land in the and British governments were badgered public-domain states of the West, which by land promoters, with and without capstrongly resented that fact, particularly as ital, and by frontier settlers to purchase the scrip had been sold chiefly to specu- additional land from Indian tribes. Often lators who thus acquired large holdings such persons, impatient for the land, cheaply. This time, therefore, it was pro- induced the Indians to make private posed to ask not for land but for income agreements with them and then tried to

from public-land sales to subsidize get their Indian deeds validated. The

research programs in the agricultural controversies that grew out of such negosciences. Since the revenues from public- tiations, the terms of which were often land sales ranged from $4 million to $11 unconscionable, and which often failed million annually between 1886 and 1891 to recognize the claims of minor bands or

some of it could easily be spared. other tribes to the territory in question, Accordingly the Hatch Act of 1887 led the British government to insist that

authorized appropriations of $15,000 to only properly accredited representatives support agricultural experiment stations of the government should have any part in every state and the Second Morrill Act in negotiations with the Indians. Terriof 1890 authorized a similar annual sum tory in which they were conceded to for the support of the land-grant colleges. have rights was declared closed to white (The 1890 Act permitted the establish- settlers, whose unauthorized intrusions

ment of more than one college in each had in the past led to Indian raids and

state.) The latter sum was to be increased warfare. The government of the United

each succeeding year until the annual States adopted these same policies but

grant amounted to $25,000. did not succeed in preventing Indian Westerners regarded as extremely dan- wars. There was constant pressure from gerous to their interests an alternate pro- the South and West for the acquisition of posal which Morrill of Vermont, Blaine reserves that had been solemnly guaranof Maine, Hoar of Massachusetts, and teed to the Indians. The fur trade brought

128 ,

Paul W. Gates

white traders into the reservations. Soon mates of the amount of water available the leading traders had the Indians, and and inadequate appreciation of the soil particularly the chiefs, so indebted to problems of irrigated areas had resulted them that they were able virtually to in large losses but had shown the possidominate the treaty negotiations and bilities in semiarid areas, if greater finanbring them to the conclusion desired by cial resources could be obtained for their the whites. Lump-sum payments for the development and if more careful planland surrendered by the Indians went to ning were done. In 1899, 7,528,000 acres meet their obligations to the traders, who in the public-land states were irrigated to could also look forward to profiting from some extent.!9 Officials of the western the annuities agreed upon. Choice sites, railroads, the real estate interests, and

often reserved for the chiefs at the boomer people joined together to win

instance of the traders, were soon government aid — that is, federal aid for

acquired by them. It was the traders who irrigation schemes. Three main proposals were responsible for the introduction of came under discussion. Outright cession

the individual allotment system into the of the remaining public lands to the

treaties with the Miami, Potawatomie, states, which might then mortgage them Choctaw, Creek, and Chickasaw Indians to raise funds for irrigation projects made during the first third of the nine- accessible to water; grants to the states to teenth century. Doubtless the traders con- enable them to experiment on a small tributed also to the Dawes Severalty Act scale, possibly on pilot projects that of 1887.17 Despite the restrictions on might lead to something bigger; finally, alienability, the allotments soon passed federal subvention of irrigation. Cession into the possession of whites, and those which had been raised over and over who were responsible for the Act ought again by western states (and was to come

to have been well aware what the results up again in the twentieth century)

would be. Step by step the Indians were seemed out of the question in view of the deprived of their land, forced or induced West’s continued failure to win sufficient to sign treaties and accept terms of com- eastern support for this proposal. Small

pensation which they now regard as pilot plants were experimented with

unconscionable. By an act of 1946 they under the Carey Act of 1894, which pro-

have been permitted to reopen their mised as much as one million acres to claims on the United States Treasury, any state containing desert lands that

and have won $524,000,000 in awards, undertook irrigation projects. Little was

one tenth of which has gone to predo- accomplished. During the next eight

minantly white lawyers. But the Indians, years only 11,321 acres were patented, having gained a bagatelle, now want to and all together less than a million acres

recover possession of lands they were of potentially irrigable land had been

~ once cheated out of.18 , selected by the eleven eligible states.

Well before 1890 the best of America’s Representative Francis G. Newlands,

arable lands had passed into private own- — borrowing heavily from the past, includership. There remained large areas of dry ing experience with distribution and the

land east of the Rockies in the inter- two Morrill Acts, won enactment of a bill

mountain country and in the Pacific to create a revolving fund into which

Coast states. Irrigation had been prac- should pour all but 5 percent of the proticed on a small scale by Indians in the ceeds from public-land sales in the sixSouthwest, and at the missions in Cali- teen western states and territories. The

fornia, and the Mormons had resorted to monies were to be used for the construcit from their first settlement in Utah. By tion of irrigation works in the states from the end of the century much private capi- which they were derived

tal had been invested, particularly in the Estimates of the amount of land that San Joaquin Valley of California, in could produce crops if water could be reclaiming arid land. Overoptimistic esti- provided ranged as high as 120 to 540

— 129

An Overview of American Land Policy

million acres, the former figure being mation has been supplementary approthat of Major John W. Powell, though all priations from general funds. Nothing were extremely optimistic, and based on comparable to this enormous expenditure no careful consideration. Newlands, at of public funds, ostensibly for the irrigaone point, estimated the possible irrig- tion of farmland but increasingly to proable area to be 70 million acres and later vide at very low rates hydroelectric reduced the figure to 60 million. Actu- power and water for domestic and busially, little more than 33 million acres are ness uses in the West, has been made in today irrigated, and this includes Texas any other section of the country. Even the which was not a public-land state.2° The subsidized Tennessee Valley Authority number of farms into which the irrigable power development in the South is a lands might be divided ranged as high as small venture in comparison with public

three to six hundred thousand. Planners — power in the West. ,

and dreamers — and propagandists of the _ Despite the generous treatment the time — presented the scheme as one West received from the federal governoutranked in significance only by the ment, it remained dissatisfied. Western Homestead Act of 1862 in its potential states continued to feel that the remainfor strengthening rural America. The — ing public lands ought to be controlled generating of hydroelectric power was and managed for their particular benefits. not at that time contemplated. However, Limits on the alienation of the public

it was soon apparent that few or no recla- domain should not be imposed, the pubmation projects could be financed with- lic ranges should be thrown open to all

, out attaching them to hydroelectric users without limit, efforts to halt timber plants and selling the water and the plundering from public lands should be power, for which there was a ready resisted, and the growing conservationist demand for industrial and domestic use. sentiment of eastern men, whom the Willy-nilly then, the Newlands Act, the West at that time dubbed ‘“‘sentimental-

increasing demands of the West for ists,’ should be fought to the bitter end.

power, and the fact that irrigated land What‘the West wanted was no restriction could repay only a small fraction of the on growth. Only western men familiar

cost of the great dams being planned with the needs of that section of the pushed the government into the develop- country should have responsibility for it.

ment of public power on an immense Hence the commissioners of the General , scale. The planners and dreamers may Land Office, the registers and receivers of have thought of establishing arural Arca- the local land offices, and the House and dia in the West, but today their accom- Senate Committees on the Public Lands,

plishments are more commonly judged and later members of the Public Land by the great industrial development and Law Review Commissions should be vast urban sprawl on the once-desert from the West.?? lands of southern California and parts of With reluctance westerners had had to

Arizona and New Mexico. accept national parks and national forests

By the late twenties the West was dis- and controlled grazing districts on the satisfied with the slow progress of water public range and administration by a

and power projects financed with the aid bureaucracy centered in Washington, but of the revolving fund of the Newlands they had the political clout to provide in Act.?! Actually the fund failed to revolve, legislation that the income of these agen-

again because of poor planning of the cies from the sale of products and serprojects. Soon western interests were vices should be spent in the West. An act

urging that additional appropriations for of 1905 appropriated the revenues from reclamation and power projects be made the national forests for “‘the protection, out of general funds. The greater part of administration, improvement and extenthe more than seven billion dollars sion’’ of the forest reserves, but two years expended to date by the Bureau of Recla- later it was provided that 10 percent of


Paul W. Gates

such revenues, later increased to 25 per- How should it be managed and by

cent, should be returned to the states or whom?2® Easterners thought the public territories in which they were collected domain should benefit the entire Union for the support of schools and roads. Step with special regard to conservation, by step other provisions for returning to broadly speaking: westerners thought it the states portions of the revenue from should be administered for their benefit. the public lands were adopted: 37.5 per- Neither section won completely in the cent of the income from sales and royal- end. The West continues to resent the ties for coal, oil, and gas taken from the retention in federal ownership of any public lands was allocated to the states of land within their boundaries. We seem to origin and 52.5 percent of these revenues be back where we started.

to the Reclamation Fund. Approximately The old debate continues, but there is the same distribution was made of the not the same division of opinion between

income from the enormously rich lands East and West. There are still elements in once granted to the Oregon and Califor- the West who feel that the federal govnia Railroad but revested in the United ernment should divest itself of the public States. Of the income from grazing leases lands, if not to individuals as in the old

12.5 percent was allotted to the states days, at least to the states who, they

and most of the balance was to be spent believe, can manage it best. But there are in improving the range.?3 Despite these other elements, both East and West, who

generous allocations of funds from the feel that the federal government should public lands the West was dissatisfied. In retain what remains of the public its report to the president in 1970, the domain, husband it carefully, not pri— western-dominated Public Land Law marily for revenue purposes as in the old Review Commission urged that, in addi- days, but for careful conservation of our tion, the federal government should national resources — soil, subsoil, water, make payments to the states in lieu of trees, and minerals. They feel that the taxes for public land it still holds in the federal government will take the larger West, the amount ranging from 60 to 90 view and not allow itself to be pressured

percent of taxes on privately owned by exploitative interests to the same

lands.24 extent it has in the past. Others think that

Western parochialism appeared in a the states are more alert to these dangers. new guise in 1953 when — inspired by The old debate is still going on but in a powerful oil interests which found state larger frame of reference. We now take a ownership of natural resources superior broader view of the value of our public for them to federal, combined with a lit- domain and have a more acute realizatle revived government-type philosophy tion of all the ecological and human — it overwhelmed the past vigorous interests that must be safeguarded. nationalism of the section and induced It may seem futile to try to decide with Congress to convey the tidelands to pub- the benefit of hindsight whether Amerilic-land states and Texas.25 Though this can land policies have been at all times action greatly reduced the possible flow wise. Not one of the policies adopted of money into the Reclamation Fund, that worked out in accordance with its advowas not a serious matter for long, since cates’ objectives (or what they publicly

Congress under western pressure had stated as their objectives); speculator taken to voting it public funds from gen- accumulations were rarely contained,

eral revenue in great amounts. whatever the intent of the legislation.

The big questions about our national Adequate classification of the lands was

land policies raised at the outset and not made before legislation, sometimes debated from that day to this are still © unsuited to it, was applied. Administra-

unsettled. Whose public land is it? For tion was not always efficient or even whose benefit is it to be administered? honest. Endless disputes occurred in


An Overview of American Land Policy

some areas. Revenues were wasted. Our ___ portion of our territory that has become

national decisions about our public private property is a more serious prob-

domain were taken originally when the lem. In fact, the old distinction between new nation had certain needs and was public and private property is losing its under certain pressures. Her people had sharpness, or is being eroded away, and already a hundred and seventy years of for the sake of later generations it should frontier experience that had permanently be. Has a man a right to destroy good, marked their attitude toward the land. As irreplaceable agricultural land by cover-

a nation we had had our revolutionary ing it up with cement or by stripmining experience, and our forefathers, some of it? Can a man do what is most profitable

them at least, had certain ideological for him with his own? But is it his own hopes for the future as a nation. New- in an unlimited sense? Rather has he not

comers arrived, drawn hither by various received from society in the ownership of

hopes and experience in societies domi- land a bundle of rights which society nated by landlords. The techniques of protects but which society may also limit

agriculture and transportation and or modify or even take over? Is not the industry were at any moment at a given public land that has passed into private stage of development. All these factors hands a trust? Older and more crowded

influenced our land policies. societies than ours have long since been

In conclusion, may I suggest that while obligated to take this stand, and we the mangement of our remaining public should come to this point of view also

domain is still a most serious and impor- and soon.?7 tant problem, the management of that ,

Harry N. Scheiber , | Property Law, Expropriation, and Resource Allocation by

Government, 1789-1910 | |

Expropriation of private property by gov- makers for vested property rights is cited ernment is seldom found on the list of as ‘‘the basic doctrine of American constipolicies which have influenced the course tutional law.’’3 Even when historians of economic development in American examine the police power of government,

history. To be sure, the once-vigorous it is often on the assumption (which I

myth of ante-bellum laissez faire has been have argued elsewhere is flatly wrong) discarded, and it is no longer taken as a that only with the Supreme Court’s decistartling proposition that governmental sion of the Granger Cases in 1877 did the

interventions to promote and regulate the common-law doctrine of ‘‘property economy occurred regularly throughout affected with a public interest’ establish the nineteenth century.‘ But for two rea- the ‘“‘ground rules’ necessary to validate sons, I think, expropriation as an instru- far-reaching regulative interventions.* ment of conscious resource allocation has Presumably, up to that time the legal sysfailed to receive from historians the atten- tem had operated largely to strengthen the

tion it deserves. bulwarks of vested rights; the “‘liberty’’

_ In the first place, the whole notion of rather than the “duties” or “public obligaproperty takings on an involuntary basis _ tions” of property, as Commons asserted, by means of eminent-domain law — what __ was ascendent in the law. Entrepreneurs

Corwin termed that ‘‘most invidious had to acquire the property they needed branch of governmental authority” — for their undertakings through market runs against the broad tendency to stress _— transactions, while vested-rights doc-

the stability of property rights in the trines served to protect established inter-

American legal order. When the ‘‘institu- ests in property.5 tional environment” of United States eco- The second reason why expropriation nomic development is analyzed, the legal gains little scholarly attention is that it

system is usually portrayed as one “in Jacked the visibility a policy issue of this which property received extreme protec- sort would gain by its debate and definition,” and the doctrinal concern of law- _ tive resolution in Congress. Simon KuzReprinted from the Journal of Economic History, vol. nets has written that each decade of 33, no. 1 (March 1973) 232-251, by permission. | nineteenth-century American growth Copyright, 1973, Economic History Association. ‘marked some decision by the [govern132


Property Law, Expropriation, and Resource Allocation by Government

ment] — on currency, on tariffs, on inter- land for highways and other transport

nal improvements, on land, on facilities, while milldam laws and, to immigration — and each one was reached some extent, fisheries regulations had

after explicit discussion in which its “qualified” property rights in a manner

importance for the country’s economic that validated coercive takings.!° Even so, growth was realized.’’® Unlike the policy few of the early state constitutions condecisions on Kuznets’s list, the law of tained explicit definitions of the eminent-

eminent domain was the product of pol- domain power or its limitations. It icy making at the state level, and there therefore fell largely to the courts to

were striking differences of policy from develop the fundamental doctrines of one state to another. Moreover, many eminent-domain law. issues that centered on expropriation pol- The state judiciaries proved uniformly , icy were resolved by the state courts, not disposed to derive from natural law, civil constitutional conventions or even legis- law, and common law three basic conlatures, and there was significant varia- cepts which by the early 1820s had tion in the timing, as well as outcome, of become firmly engrafted onto the constidecisions. Not until 1848 did the federal tutional law of the states. These concepts Supreme Court hand down a decision were: (1) that the eminent-domain power directly on the eminent-domain power of was an inherent attribute of sovereignty, state governments. Both then and subse- so that private property was held subject quently, its role was mainly a validating to takings by the state; (2) that this power one, supportive of state autonomy and tol- could be legitimately exercised by the

erant of substantial diversity.” state only for a ‘“‘public use’’ or “public

From what one scholar has termed the purpose’’; and (3) that when property was “massive body of case law, irreconcilable so taken, the injured private owner must

in its inconsistency, confusing in its be paid a ‘just’ or ‘‘fair’’ compensation.

detail and defiant of all attempts at classi- Taken at face value, these three doctrines

fication,’® one can still identify some comprised a legal fortress behind which coherent policy patterns that indicate the property would be secure from arbitrary place of expropriation in the larger fabric or uncompensated expropriation. They of “institutional environment,” the ‘‘deci- expressed a theory that the cost of public

sion rules’’ of the legal system, and the undertakings would be ‘“‘socialized’’

spectrum of policy instruments by which rather than left to fall upon those individgovernment allocated resources.°® The fol- ual property owners who happened to

lowing discussion attempts to illuminate stand directly in the path of

these themes and to offer both a concep- improvements.!!

tual and a narrative framework for histori- The ‘public use’ limitation did not cal study of expropriation in the United arouse substantial controversy, so far as States to 1910. No measurements are projects built and operated by governoffered concerning the redistributive ment itself were concerned; a public road

effects of eminent-domain policies. But an or a state canal project was clearly a pubeffort is made to identify the directions in lic use. But the courts went further than which expropriation was purposefully mere validation of coercive property takused to allocate resources, to influence ings in such cases. They also formulated a the structure of entrepreneurial opportu- series of expediting doctrines to complenity, and even to provide effective subsi- ment the basic expropriation concepts.

dies for favored types of business These doctrines found their justification

enterprise, often at high cost to “vested in the extraordinary public importance of

rights” in property. such projects (for example, the Erie Canal

| , — termed by Chancellor Kent “a great

In the colonial period, the provincial public object, calculated to intimidate by legislatures had authorized the taking of its novelty, its expense, and its magni-


Harry N. Scheiber

tude’’!2); the expediting doctrines were be permitted, or the like.17 Finally, most designed to render the power of the state state courts permitted legislatures to manconsistent with the magnitude of such date that benefits to the remaining propundertakings. Hence the ante-bellum state erty of an owner who lost only part of it courts generally ruled that a private prop- under eminent-domain takings should be erty owner who wanted to challenge state ‘offset’? against the appraisal of damages. officials engaged in eminent-domain tak- This offsetting doctrine held down the ings was restricted exclusively to statu- state’s costs, and it provided the basis for tory remedies; he was foreclosed from a potentially large involuntary subsidy for

resorting to the traditional equitable the projects being undertaken. Though a

remedies, such as nuisance, trespass, and precise quantitative estimate of that sub-

damage suits. 1% sidy cannot be calculated,'* the frequent Another important expediting doctrine references to the offsetting doctrine’s

limited the right to compensation only to effects in court records and other sources property that was physically taken. Indi- able one

| ; ; suggest that the subsidy was a consider-

rect or consequential damages were not

ceemed compensable. One landmark To validate a set of cost-reducing docecision, by the Massachusetts court in trines, all in the name of great public

1823, ruled that a house owner ha d no works owned and operated by the governright to compensation when the city Te- ment, was one thing. But the most imgraded the street, exposing the house . portant single development in early-ninefoundations and destroying accessibility. teenth-century eminent-domain law probEvery one who p urchases a lot upon the ably was the wholesale transfer of these

summit or on the decline of a hill,” the doctrines to the private sector, in aid of court declared, |S presumed to foresee incorporated companies on which legislathe changes which public necessity or tures devolved the power of eminent convenience may require.’’!4 One is left to domain. That was something else again.

ponder whether John Winthrop, when he Dev olution of the eminent-domain announced the building of ‘“‘a citty upon a power upon turnpike, bridge, canal, and

hill,” should nave appended a caveat railroad companies was done in every

emptor! Pennsylvania’s court, in a similar state.19 Indeed, if such companies had rulin 8» admitted that such a tule left an lacked the power to take property coerciindividual to “be made involuntarily to vely for rights of way, they would have contribute much more than his proportion been left at the mer cy of any individual

to the public conveniences” _ precisely landowner disposed to be stubborn or what eminent-domain law was designed extortionate. Once a state legislature to avert — but offered plaintiffs the solace decided to vest its eminent-domain power that they had ‘‘at least the miserable good in a private corporation, the courts would

luck to know that they have companions generally rule that this carried with it all

iM misfortune. Finally the Supreme the expediting doctrines originally conCourt, 1897, upheld this devastating ceived to support the sovereign exercise interpretation of the compensation of governmental power by the state itself. requirement on the broad grounds that Hence in some states railroad companies private Interests Just yield to public were enabled to acquire land at virtually

accommodation. no cost, on grounds that the benefits to the A third expediting doctrine related to landowners’ remaining property entirely procedure. So long as a statute provided offset the value of property taken. In Ohio,

specific procedures by which damages for example, railroads were notoriously

, were appraised, could be appealed, and successful in obtaining appointment by would be paid, there was no constitu- the courts of friendly appraisers who

tional requirement that a jury trial should would assess benefits as equal to all the


Property Law, Expropriation, and Resource Allocation by Government

damages, and in Illinois, railroad takings ‘not only where the safety, but also where frequently resulted in assessment of dam- the interest or even the expediency of the ages of one dollar. In New York, Vermont, state is concerned.” Jurists who were Massachusetts, and other states, subsidi- reluctant to adopt so sweeping a formal zation of railroads through offsetting had validating doctrine might instead insist

become common by the 1850s.?° Simi- that the legislature had a free hand in larly, the courts afforded to both private devolving the eminent-domain power transport-project promoters and milldam “for some necessary and useful pur-

builders the same immunity to actions for poses.”’23 Another doctrinal thread was nuisance, trespass, and torts as had been unwound from the common law: in many granted earlier to state officials. The prop- states, courts cited the common-law conerty owner who dared seek a common-law cept of riparian property that was not injunction against such private promoters strictly private but rather publici juris —

was put down with a heavy hand by the under special obligations, or a ‘‘servicourts. And so long as some (almost any) tude,” to the public. Expropriation was procedure was specified in statutes for justified for privately financed canals and compensation of owners who lost land to railroads in these courts because like nav-

companies exercising the eminent- igable rivers and highways they would domain power through devolution, equi- have to be kept open to the public, or (like

table remedies were foreclosed.” turnpikes) their proprietors were ‘‘comThe courts also authorized a corpora- pellable to permit the public to use them,

tion, once vested with the eminent- on paying toll.’’24 domain power, to exercise that power Courts also drew upon long-standing repeatedly to expedite alterations or legislative precedents afforded by the

enlargements of the project within the milldam acts. In many states, because of broad terms of its state charter, and so the importance of gristmills to a farming abutting landowners stood in constant community the legislatures had extended jeopardy. Justifying this interpretation of special privileges to millers. Among these

eminent-domain devolution, the Illinois privileges was the power to overflow court stated flatly that a railroad company neighboring lands in order to create a

must be able to lay its hands on whatever millpond or reservoir for waterpower. To

it might need “for its own convenience or compensate owners of the land overthe public accommodation.” Similarly, in flowed, the milldam statutes had proMassachusetts the high court validated vided for either annual assessment by

property takings beyond what was origi- commissioners of the income loss nally expropriated by a railroad on incurred, or else a once-for-all damage grounds that ‘‘these works are comparati- judgement.?5

vely new, and improvements are con- Beginning in the mid-1830s and contin-

stantly making in the structure and uing through the next three decades,

management of the works, and thus com- numerous states greatly extended the panies may profit by their own experience milldam principle by devolving the and that of others.’’ Besides, the corpora- expropriation power upon manufacturing

tion’s own officials could best judge the firms in quest of water-power sites for extent of its needs, ‘‘and their decision purposes other than grinding grain. The

therefore must be definitive’’!?? New Jersey court was the first to adjudiJudges spun a fine web of doctrine to cate a case challenging this dramatic ,

justify such devolutions of power on pri- enlargement of eminent-domain doc-

vate companies. One thread was theoreti- trines. When that state’s legislature autho-

cal: it was for the legislature, in its rized a private corporation to expropriate

exercise of the majestic powers of sover- land for the development of some seventy

eignty, to decide where to place the mill sites along a six-mile stretch of the expropriation power and how to wield it, Delaware River, lawyers resisting the


Harry N. Scheiber project termed it a blatant attempt to ‘‘take In the first place, there was substantial private property for private use’ — a legal opposition by some lawyers, jurists, and innovation that would render worthless political leaders who regarded the sucthe “public use’’ limitation on the emi- —_ cessive expansions of eminent-domain nent-domain power. But the court upheld doctrines as dangerous. For many conserthe statute. Even though the corporation’s __vative figures, such as Daniel Webster primary purpose was private profit, the and Joseph Story, the focus of their concourt said, ‘“The ever varying condition of cern was a position taken by several state

society is constantly presenting new courts in the 1840s, holding that even

objects of public importance and utility; corporation franchises could be taken

and what shall be considered a public use under eminent domain. Such a doctrine, or benefit, must depend somewhat on the Webster contended, would destroy the situation and wants of the community for climate of investment which had favored

the time being.’’?° economic progress, and in the hands of

Massachusetts followed suit soon after- ‘ultra’ legislative radicals could lead to ward, its high court ruling that a tide- an “‘unlimited despotism.”’2? But when

dam corporation given the expropriation the issue finally came before the

power, ‘although commenced with a Supreme Court in 1848, the Court found

view to the private advantage of the stock- that a state could authorize the taking of

holders, promised to be of immense and a chartered company’s bridge and its certain utility to the state.”?7 Although conversion to a public way, upon payNew York, Georgia, and Alabama courts ment of compensation to the company. refused to permit expansion of the “pub- The eminent-domain power, the Court

lic use’”’ concept to validate expropriation declared, was ‘‘paramount to all private for general manufacturing purposes, the rights vested under the government.’’3°

enthusiasm spread widely to other states. Others who opposed the eminent-

By 1870 such laws had been upheld in domain power’s extension were men on

Main, Connecticut, New Hampshire, Wis- _ the other side of the political spectrum. consin, Indiana, and Tennessee. The most Suspicious of monopoly and privileged

pragmatic sort of validating doctrine was corporations, they denounced “offsetadopted in all these states: that if water- ting’ and other expediting techniques as power development ‘‘would largely con- instruments to exploit the “little man,”’ duce to the prosperity of the state,’’ as one the simple farmer or householder who

critic phrased it, then expropriation of was subjected to loss of property to a land at dam sites was constitutional.?® favored business enterprise without truly

In effect these states gave to certain just compensation.3! But this group manufacturing firms the status of public obtained no more support from the

utilities. But this was done only to justify Supreme Court than did the propertyarming them with power to expropriate minded conservatives. For in 1850 the some of America’s choicest water-power Court ruled that even if the facts showed sites, such as those on the Connecticut that a governmental taking blatantly vioRiver, the Delaware, and the Merrimac. lated both the ‘‘public use” and ‘“‘fair Needless to say, legislatures that were so compensation”? requirements of a state anxious to attract manufacturing invest- constitution, “it rests with the State legisment did not seek to regulate such enter- latures and State courts to protect their prises as public-utilities doctrine might citizens from injustice and oppression of have justified. The manufacturers had the this description.’’32 Beginning in the

best of both worlds. 1850s, however, opponents of the

extended eminent-domain power had |

- Before turning to the period after 1870, begun to push through some reforms in brief observations are warranted regard- state constitutional conventions. In lan-

ing three subsidiary questions that guage widely copied later by other state

entered into the history prior to that time. conventions, Ohio’s constitution writers


‘Property Law, Expropriation, and Resource Allocation by Government

in 1851 wrote a provision that if a cor- importance of mining as a “leading

poration took property under eminent industrial interest’? had been invoked by

domain, it must provide prior payment to the courts to validate takings of property the injured property owner, with com- to build strictly private roads into mines, pensation to be determined “‘irrespective the same courts held that mining compaof any benefit from any improvement nies were not liable for damages resultproposed by such corporation, ... by a ing to downstream proprietors from their jury of twelve men.” Iowa followed suit pollution of streams. “The necessities of in 1857, and the 1859 Kansas constitu- a great public industry, which although tion included a provision nearly identi- in the hands of a private corporation,

cal. Over the next thirty years, other subserves a great public interest,’ the

states adopted the Ohio model for consti- Pennsylvania court declared, justified

tutional reform on these lines.34 such ‘‘trifling inconveniences to particu-

A second important feature of pre-1870 lar persons” as the contamination of a eminent-domain law was the wide appli- house owner’s domestic water supply! cation, in state courts, of the “fair com- Thus, in nuisance law, as in the jurisprupensation’? requirement as a negative dence of expropriation, ‘‘the rough out-

check on the police power. Courts line of natural right or natural liberty,” as

invoked the compensation doctrine, in an Alabama judge averred, ‘‘must submit other words, to require government to to the chisel of the mason, that it enter indemnify property owners for some symmetrically into the social structure.’’>° types of damage that resulted from regu-

latory statutes. Cases of this sort proved The heyday of expropriation as an

especially important as they influenced instrument of public policy designed to

governmental efforts to allocate resources subsidize private enterprise can probably on internal waterways: they raised a host be dated as beginning in the 1870s and of questions about the legitimate reach of lasting until about 1910. During that era regulatory laws to protect public fishing of alleged laissez faire (which in fact was rights, about milldam and log-boom fran- a period of broad-ranging public subsichises on rivers, and about the protection dies for business), all the constitutional of navigational rights on streams deemed stops were pulled out.

‘under servitude to the public.’’34 No longer did judges or framers of state Finally, it is noteworthy that by the constitutions rely so much upon sophis-

1850s the doctrine of “public use” devel- tries about “public use.’’ Instead, they oped in eminent-domain litigation was now merely paused to assert prescrip-

having major spillover affects in taxation tively that one private interest or another

law and in the law of nuisances. The — mining, irrigation, lumbering, or manextensive state aid and local assistance ufacturing — was so vitally necessary to given private railroad corporations, the commonweal as to be a public use by beginning in the 1850s, was justified by inference. In some of the western states, the courts on the same grounds as had they went beyond that; without verbal legitimated devolution of the eminent- evasion, they simply declared certain domain power.*> As to the law of nui- types of private enterprises to be “‘pubsances, the doctrine that certain types of lic’ in their constitutions. All this was business enterprise were so vital as to done, moreover, despite the availability justify eminent-domain devolution could of the Fourteenth Amendment — an also be turned to their advantage by instrument which the courts readily used immunizing such enterprises from nui- when they decided to invalidate state sance-damage liability. Thus the courts laws to regulate private enterprise.37

afforded to railroads a sweeping immu- By the time this period of eminentnity from common-law suits against domain law had begun, the legal docsmoke or noise pollution. And in Penn- trines forged in the East had already

sylvania and other states where the provided a sufficient foundation for


Harry N. Scheiber

newer states to break through the cake of constitutional convention of 1875-76 legal custom. Indeed, two of the most fre- adopted a provision that private property

quently cited precedents in this period might be taken for private use “for pricame from New England. One was the vate ways of necessity, ... reservoirs, case of Talbot v. Hudson, a Massachu- drains, flumes, or ditches on or across the setts decision of 1860 which declared: lands of others, for mining, milling,

, domestic, or sanitary purposes.’’4° Other It has never been deemed essential that the Rocky Mountain states followed this entire community or any considerable por- model closely.4! In the Idaho constitution of it should directly enjoy or partici- tional convention of 1889, the debate pate in an improvement or enterprise, in over expropriation produced a sharp order to constitute a public use... [E]v- clash of farming interests against miners.

erything which tends to enlarge the Neither interest group stood for an

resources, increase the energies, and pro- abstraction that can be termed ‘‘vested mote the productive power of any consider- rights’; rather, each wanted the upper able number of the inhabitants of a section hand in the rivalry to exploit common of the State, or which leads to the growth of resources. The bitter debate over what towns and the creation of new sources of one delegate termed ‘‘a doctrine that is private capital and labor, indirectly contrib- anti-republican in every respect, ... conutes to the general welfare and to the pros- trary to the right to hold property ... or

perity of the whole community.38 to pursue happiness” ended in a compro-

mise.*? Idaho’s constitution thus declared

A New Hampshire case of 1867, Great as a public use all uses of land for irrigaFalls Manufacturing Company v. Fer- tion and drainage purposes, for the drainnald, stressed the need to adapt law to ing and working of mines including ‘“‘the

the realities of topography and climate. working thereof, by means of roads,

Validating as constitutional an act that railroads, tramways, cuts, tunnels, shafts, authorized a general manufacturing firm hoisting works, dumps or other necessary to overflow neighboring lands to create a means to their complete development, or

reservoir for water-power, the court any other use necessary to the complete

stated: ‘‘Nature has denied us the fertile development of the material resources of soil and genial climate of other lands, but the state.’ For these purposes might priby way of compensation has endowed us vate property be expropriated upon paywith unrivaled opportunities of turning ment of compensation.*?

our streams of water to practical To the state courts that subsequently

account.” It was legitimate, the court reviewed statutes enacted under these declared, to make the law bend to the western constitutions, doctrinal support

dictates of nature and comport with “the for such elevation of private uses to an character of our business and the natural exalted constitutional status derived as productions and resources’”’ of the state.39 well from a landmark Nevada territorial

Little wonder that these doctrines decision of 1876. Upholding an act of

should have proved attractive to jurists in 1875 authorizing expropriation of land, the far-western states in ensuing years. lumber, and other construction materials

For there, the hardships of life in arid by mining companies, the court distinlands and mountain fastnesses, the guished between two types of business nature of the resource base, vast dis- enterprises. On the one hand, there were tances, and, above all, men’s impatience ordinary businesses that could be conto force the pace of economic develop- ducted without regard to a specific site ment, all seemed to overwhelm the location, and this type was ineligible for remaining bulwarks of legal-constitu- eminent-domain devolution. On the

tional structure. other hand, there were businesses such Colorado blazed the path of eminent- as mining which were tied to a particular domain law for the West. That state’s resource site; for this type of enterprise, a


Property Law, Expropriation, and Resource Allocation by Government

clear necessity for eminent-domain devo- lands,”’ and for storing logs.*”7 Reviewing

lution existed.44 This Nevada decision this statute in 1906, the Idaho court

was widely cited in other western states. found little in the state’s constitution that

But interestingly enough, it was almost could fault such a law, for unless the always for its blanket declaration that eminent-domain power was as broad as ‘‘an interest of great public benefit to the this, ‘‘a complete development of the community” warranted expropriation for material resources of our young state

private use. Emblematic of the spirit could not be made.’’48 On similar

which prevailed in the western courts grounds, the courts of Nevada, Montana, was the fact that the “site necessity”’ Colorado, Idaho, Washington, New Mexargument — a more impressive one by far ico, and Arizona upheld laws permitting

— was left in the background.** expropriation of property when neces-

Given western terrain and the distribu- sary for purposes of running an irrigation tion of mineral resources, it was inescap- canal or ditch across private land. For, as

able that the exigencies of site, or the Arizona territorial court insisted, a

location, should often be controlling. legislature must be permitted to use (or

This was highlighted in a Montana case devolve) the power of eminent domain so of 1895, in which a railroad company that local ‘‘advantages and resources may sought to block the expropriation of part receive the fullest development for the of its right of way (not actually in use for general welfare.’’4? Elsewhere the publictrack) and repeated crossing of its tracks utilities doctrine was invoked to validate

by a second railroad, then under con- takings for private irrigated farming: so struction, building into the Butte Hill long as water companies could be regu-

mining area. The court ruled that if the lated, they could be vested with eminentAnaconda, the Wake Up Jim, the Buffalo, domain power.*°

the Moscow, and other mines in this A vital part of the constitutional conregion were to be benefited by the second 7 text was, of course, the response of the

railroad, then the “publicity” (that is, Supreme Court when the western states’

“public use’’) of the enterprise was ‘‘too doctrines were challenged. In a word, the obvious to require more extended com- Supreme Court largely upheld local prac-

ment.” For in that locality, mining was tices. As early as 1871 the Court had ‘the all-important pursuit” and so ‘‘bene- begun to tighten the requirements for fits to the public” deriving from benefits ‘just compensation” by ruling that cer-

to the mining companies could hardly be tain kinds of consequential, or indirect, doubted.*° In the scramble for develop- damages constituted a “taking” of propment in this country where men dug ore erty.5! And in 1897 the Court expressly out of mountains, the niceties of emi- ruled that the Fourteenth Amendment in nent-domain limitations — which even effect applied the Fifth Amendment’s in the more genteel eastern states had ‘Just compensation”? requirement to all been treated with some sophistry — thus state-sanctioned eminent-domain progave way without ‘‘extended comment.”’ ceedings.5? But when the legitimacy of In Idaho the legislature enacted a law the broad expropriation power for expliin 1887 for devolution of the eminent- citly ‘‘private use’’ in the western states domain power which, after revision in came before the Court, there was no com1903, embraced the following: ‘‘wharves, parable will to intervene. California’s

docks, piers, chutes, booms, ferries; laws permitting water companies to con-

bridges, toll-roads, by-roads, plank and demn private land for irrigation purposes turnpike roads; steam, electric, and horse were tested before the Court in 1896 and

railroads; reservoirs, canals, ditches, were upheld. Eight years later, in the

flumes, aqueducts, and pipes; [projects] case of Clark v. Nash, the Court validated

for public transportation, supplying a Utah statute authorizing an individual mines and farming neighborhoods with to condemn a neighbor’s land in order to

water, and draining and reclaiming convey water to his own. If the taking


Harry N. Scheiber , “be essential or material for the prosper- By about 1910, the configuration of

ity of the community,’’ the Court expropriation law had begun to change declared, it was valid.5? Such statutes § markedly in the United States. As men-

must be adjudged by a standard of consti- tioned earlier, many states adopted tutionality, said that Court, that takes changes in their constitutions, such as account of “peculiar condition[s] of the requiring jury trials in cases of takings by

soil or climate’’: private corporations, narrowing the range

, of permissible ‘“‘offsetting’’ procedures, The validity... may sometimes depend and requing Por payment in cases of upon many different facts, the existence of |constitutions ee va gs state were amended to

, , expropriation. In addition, numerous which would make a public use, even by an , only , qe require compensation not individual, where, in the absence of such i,also 9 | when ? , property was ‘taken’? but when facts, the use would clearly be this private... “d 1967 :. ; , amaged. By time, moreover, _ [The, State’s own courts] understand the sit; | eminent-domain powers were being uation which led to the demand for the | ; . employed as an instrument of city planenactment of the statute, and they also ; dj | t and th 4 iate the results upon the growth and mens ane improvements an © prachce

apprecta of of ‘excess condemnation”’ was becoming prosperity the State... The Court must ;,; 7 ze the diff f climate and soil a central issue much debated in legisla-

hich, ae d 6 erence ch ° diffe an t a tures and in courtroom litigation.5® Later wv th, Stat er situated 3 1 ese cunerenr saws in the twentieth century, especially with

BENE OLALES SO ia tatec. the beginnings of massive regional development in the Tennessee Valley and with

No doubt the Supreme Court may well dramatic expansion of the federal urbanhave been moved to leave such broad dis- _ renewal law and highway programs, the cretion with the arid-land states out of | main focus of eminent-domain law has

sympathy, too, for efforts to prevent shifted to government projects and their ‘water monopoly” from blocking new _ social consequences. As the checkered settlement or leaving latecomers at the history of the urban and highway promercy of men who had already estab- grams amply attests, however, the interlished title to lands along the region’s penetration of private business interests streams.°> But its solicitude reached and governmental programs justifying beyond the concerns of small farmers to expropriation continues to be a central embrace mining corporations, lumber - problem of public policy. Nor has the companies, and railroad interests as well, | expropriation power proved to be a poland in 1907 the Court upheld an eastern _icy instrument less fearsome in the hands railroad’s taking of property to construct of governmental authorities than it had a spur track which would serve the fac- —_ been in the heyday of “‘private use’’. Wit-

tory warehouse of a large shipper and ness the uses of eminent domain in

relieve congestion at the company’s _ recent decades to obliterate black urban existing terminal and yards. The Court neighborhoods or to cut broad highways recalled that it had consistently upheld through treasured landscapes at such state courts’ positions on what consti- high cost to our ecological heritage.5? tuted a ‘‘public use’ in expropriation | Hence perhaps the most important conticases, and it reaffirmed that it would give nuity in public debate over expropriasympathetic consideration not only to tion, coming down to our own day, is the evidence as to ‘“‘the resources” and “the widely shared sense that the appalling

capacity of the soil’ but also as to “the technical complexities of eminentrelative importance of industries to the domain law, troublesome enough in

general public welfare, and the long- themselves, are but the surface manifestaestablished methods and habits of the _ tion of the serious social inequities asso-

people.’’5¢ ciated with it. To be sure, there has lately


Property Law, Expropriation, and Resource Allocation by Government

been a radical cutback in sovereign tort pensation.’’®! It would be a salutary immunities, so that many issues whichin — thing, perhaps, to ponder that a doctrine

1910 would have reached the courts as of public use ‘‘depend[ing] somewhat on eminent-domain cases now do so instead _ the situation and wants of the commuas tort suits against the government.®® _ nity for the time being’ was expounded But genuinely searching reappraisal and by a respected American court more than reform of expropriation law are probably a century before Fidel Castro offered his

only commencing. own variant of it — or to consider what

To understand expropriation policy in place ‘‘prompt, adequate compensation”’ the present era requires an appreciation has had in our own country’s historic law of how that policy functioned in that ear- of property taking. °? lier period of American economic history Another purpose to be served by reapwhich has been our concern here. If noth- praisal of expropriation as an American ing else, closer study of our own history policy instrument is one more narrowly

may offer a perspective from which to the profession’s, concerned as we are appraise such policy documents as one with understanding the legal rules by

issued by the White House and disarm- which American capitalism flourished in ingly entitled ‘““Economic Assistance and the nineteenth century. It is to look anew

Investment Security in Developing at the standard notions of stability of Nations.” This fascinating contribution property rights, and to reconsider the

to the Pax Americana warns the develop- simplistic definitions of ‘‘vested rights”’

ing nations that ‘the wisdom of any and interpretations of how those rights expropriation is questionable, even when were treated in the law. In short, we adequate compensation is paid.” It goes ought to test through empirical study

on to specify sanctions that the United Willard Hurst’s contention (so ably docuStates government will impose against mented in his own pioneering scholar-

nations that violate three American ship) that how the nineteenth-century

requirements in cases of expropriation: American legal system functioned ‘‘in “That any taking of American property the name of vested rights had less to do will be non-discriminatory; that it will be with protecting holdings than it had to for a public purpose; and that [our] citi- do with protecting ventures.’’® zens will receive prompt, adequate com-

Morton J. Horwitz

The Transformation in the Conception of Property in American Law, 1780-1860

The productive development of land development began to take hold of Ameriand natural resources at the beginning of can society in the early years of the nine-

the nineteenth century drew into question teenth century, however, the idea of many legal doctrines formulated in an property underwent a fundamental trans-

agrarian economy. In the eighteenth cen- formation — from a static agrarian contury the right to property had been the ception entitling an owner to undisturbed right to absolute dominion over land, and enjoyment, to a dynamic, instrumental, absolute dominion, it was assumed, con- and more abstract view of property that ferred on an owner the power to prevent emphasized the newly paramount virtues any use of his neighbor’s land that con- of productive use and development. By flicted with his own quiet enjoyment.! the time of the Civil War, the basic change Blackstone, in fact, asserted that even an in legal conceptions about property was

otherwise lawful use of one’s property completed. This article examines the

could be enjoined if it caused injury to the process by which the change took place. land of another, “‘for it is incumbent on a

neighboring owner to find some other Property Rights in the Nineteenth place to do that act, where it will be less Century: The General View offensive.’’? Not until the nineteenth cen-

tury did it become clear that, because this Two potentially contradictory theories conception of ownership necessarily cir- of property rights underlay eighteenthcumscribed the rights of others to develop century legal doctrines for resolving contheir land, it was, in fact, incompatible flicts over uses of property. The first, an with a commitment to absolute dominion. explicitly antidevelopmental theory, lim-

Logical difficulties had been easily con- ited property owners to what courts

cealed by experience, since the prevailing regarded as the “natural” uses of their ideal of absolute property rights arose in a land, and often “‘natural’’ was equated society in which a low level of economic | With “agrarian.” For example, in cases

activity made conflicts over land use involving the conflicting claims of two

extremely rare. As the spirit of economic riparian owners, courts usually gave precedence to appropriation of water not Abridged from University of Chicago Law Review, only for domestic purposes but often for

40 (1973), 248-261, 290, by permission. agriculture and husbandry as well.3 142


The Transformation in the Conception of Property in American Law

Natural uses of land were probably duction of a new use on the land but

favored also by strict liability in tort: any rather the prior state of inactivity before interference with the property of another the new use appears, then once again the gave rise to liability; only the lowest com- doctrines of priority and natural use yield mon denominator of noninjurious activity the same result. Indeed, when in the name could avoid a suit for damages. The fre- of economic development the inevitable

quency with which eighteenth-century attack on eighteenth-century property courts solemnly invoked the maxim sic doctrine begins, these two are regularly

utere tuo, ut alienum non laedas‘ is a sig- lumped together by their opponents as nificant measure of their willingness to parts of one theory. impose liability for injury caused by any Though the two theories can be merged,

but the most traditional activities. they can also be made to have profoundly

The second theory of property rights on different consequences. If priority is meawhich courts drew in the eighteenth cen- sured not from a common denominator of

tury, though it appeared in a variety of natural use but from the time that a new

legal forms, amounted to a rule that prior- technology appears, the theory of natural

ity of development conferred a right to use coninues to enforce its antideveloparrest a future conflicting use. Sometimes mental premises, but a rule of priority this rule was simply stated by the long- now confers an exclusive property right

standing maxim “first in time is first in on the first developer. ,

right.’’ More refined formulations The potential for conflict between the

required that the first user be engaged in two theories first began to surface in the his activity for a period of time sufficient | nineteenth century. There are, for examto ripen into a prescriptive property right ple, no cases before then dealing with

against interfering activities. conflicts over use of water in which an

At first glance, the rule of priority English or American court acknowledges

seems more compatible with economic that different consequences follow from a development, since it gives at least the rule of ‘‘natural flow’? as opposed to one

first user freedom to develop his land as of ‘prior appropriation.’’ Courts were he wishes. By contrast, doctrines based on induced to distinguish between the two

natural use confer on all landowners rules in such cases only when the judges

equal power to maintain the traditional © began trying to break away from the antiorder of things and thereby to impose a developmental consequences of common-

continuing pattern of nondevelopment. law doctrine. Before the nineteenth century, however, Once priority and natural use had taken the theory of property was harnessed to on different operational meanings, the the common antidevelopmental end. common law had moved into the utilitarWhere two neighboring parcels of land ian world of economic efficiency. Claims were underdeveloped, each owner could founded on natural use began to recede claim aright, based on priority, to prevent into a dim preindustrial past, and the further development. Thus, depending on newer ‘‘balancing test” of efficiency came the level of economic development from into sharp focus. As priority came to take which one begins to measure priority, the on a life of its own distinct from doctrines

consequences of the theories of natural of natural use, it was put forth not as a and prior use may be the same; since the defense against encroachments of modlowest level of development is also the ernity but as an offensive doctrine justiearliest, each party acquires a prior right fied by its power to promote economic

to the land in its natural state. development. In a capital-scarce econFurthermore, just as the theory of prior- omy, its proponents urged, the first

ity could be reduced to one of natural use, entrant takes the greatest risks; without so could the natural-use doctrine claim to the recognition of a property right in the enforce a rule of priority. If the starting first developer—and a concomitant power

point for judgment is not the first intro- to exclude subsequent entrants—there


Morton J. Horwitz a ee a , cannot exist the legal and economic cer- complexities of technical legal doctrine, tainty necessary to induce investors into a the facade of economic security can be

high-risk enterprise. = = © maintained even as new property is Though the strength of its hold varied allowed to sweep away the old. among particular areas of the law, in gen- The plan that the historian sees in retroeral, priority became the dominant doc- spect, however, is not what the partici-

trine of property in the early stages of pants in this process saw. They were

American economic growth. Its develop- simply guided by the conception of effiment paralleled that of pervasive state- ciency prevailing at the moment. Practical

promoted mercantilism in the men, they may never have stopped to early-nineteenth-century American econ- reflect on the changes they were bringing

omies; while it was displaced almost about, nor the vast differences between

the century. } , | pment

immediately in some areas of the law, in their own assumptions and those of their others it continued to stand firm well into predecessors. — The attack on the rule of priority reveals Water Rights and Economic

the basic instability of utilitarian theories Develo t of property. As property rights came to be

justified by their efficacy in promoting ~The extensive construction of mills and

economic growth, they also became dams at the end of the eighteenth and

increasingly vulnerable to the efficiency beginning of the nineteenth centuries claims of newer competing forms of prop- gave rise to the first important legal ques-

erty. Thus, the rule of priority, wearing tions bearing on the relationship of prop-

the mantle of economic development, at erty law to private economic devel-

first triumphed over natural use. In turn, opment, and it was here that the antideve-

those property rights acquired on the lopmental doctrines of the common law ,

basis of priority were soon challenged first clashed with the spirit of economic under a balancing test or ‘‘reasonable use”’ improvement.> As a result, the evolving

doctrine that sought to define the extent law of water rights had a greater impact to which newer forms of property might than any other branch of law on the effort

injure the old with impunity. Priority to adapt private-law doctrines to the

then claimed the status of natural right, movement for economic growth.

but only rarely did it check the march of Most of the legal controversies over efficiency. Nor could a doctrine of reason- water rights were of three types. The first, able use long protect those who advanced and by far the most important, involved under its banner since its function was to an action by a downstream riparian land-

clear the path for the new and the effi- owner against his upstream neighbor, cient. Some of its beneficiaries eventually either for diverting the stream for agricul-

reclaimed the doctrine of priority, this tural purposes or for obstructing the natu-

time asserting the efficiency of ‘natural ral flow of water in order to raise an

monopoly” and the inevitability of a stan- upstream mill-dam. As dams grew larger,

dard of priority. — a second set of cases dealt with the suit of _ Viewed retrospectively, one is tempted an upstream mill owner against the down-

to see a Machiavellian hand in this stream mill owner for throwing the water process. How better to develop an econ- __ back so far as to impede the wheels or omy than initially to provide the first impair the fall of the upper mill. In a third developers with guarantees against future group of cases, arising under the mill acts competitive injury? And once develop- passed by most states, a neighboring landment has reached a certain level, can the = owner sued the proprietor of a mill who claims of still greater efficiency through had flooded his land by raising a dam. competition be denied? By changing the _—_ Since the far-reaching impact of the mill

rules, and disguising the changes in the _acts is discussed later in this article, the


The Transformation in the Conception of Property in American Law

discussion here will focus on the wide- instrumental good or a productive asset spread changes in the rules regulating the but rather a private estate to be enjoyed for

exploitation of water resources during the its own sake. The great English gentry, first half of the nineteenth century. This who had played a cental role in shaping

branch of law is important not only the common-law conception of land, because of its direct influence on the regarded the right to quiet enjoyment as

course of early economic growth but also the basic attribute of dominion over prop_ because the problems it was forced to con- erty. Thus the New Jersey court regarded front and the legal categories developed the legitimate uses of water as those that for dealing with them reveal the basic served domestic purposes and husbandry,

structure of thought about all forms of requiring insignificant appropriations of property in the nineteenth century. the water’s flow. All other interferences

, with the natural flow of water, including

“WITHOUT DIMINUTION OR OBSTRUCTION” both diversion and obstruction, were ille-

—— | gal “without the consent of all who have

Two basic assumptions determined the an interest in it.’’ Exploitation of water approach of the common law to conflicts | resources for irrigation or milldams, over water rights. First, since the flow of | which necessarily required significant

water in its natural channel was part of interference with the natural flow of nature’s plan, any interference with this water, was thus limited to the lowest comflow was an “artificial,’’ and therefore mon denominator of noninjurious develimpermissible, attempt to change the nat- opment, just as conflicts over the use of ural order of things. Second, since the land were invariably resolved in favor of right to the flow of a stream was derived economic inactivity. —_ from the ownership of adjacent land, any When American judges first attempted use of water that conflicted with the inter- to resolve the tension between the need

ests of any other proprietor on the stream for economic development and the fundawas an unlawful invasion of his property. mentally antidevelopmental premises of A late-eighteenth-century New Jersey case the common law, the whole system of tra-

clearly expressed the prevailing ditional rules was threatened with disin-

conception: | tegration. Some courts went so far as

, | virtually to refuse to recognize any right

_ In general it may be observed, when a man to prevent interference with the flow of purchases a piece of land through which a water to a mill. Connecticut courts, for natural water-course flows, he has a right to example, for a while limited the lower make use of it in its natural state, but not to proprietor to the rights to prevent’ waste stop or divert it to the prejudice of another. and to receive enough water to satisfy Aqua currit, et debet currere is the language ‘necessary purposes.”” Even after disof the law. The water flows in its natural carding this doctrine in 1818, Connecticut channel, and ought always to be permitted jurists continued to disagree over whether to run there, so that all through whose land a right to water was based on the comit pursues its natural course, may continue mon-law rule of natural flow or ‘was to enjoy the privilege of using it for their gained only by a long-standing pattern of own purposes. It cannot legally be diverted appropriations.’ The Supreme Judicial from its course without the consent of all Court of Massachusetts in Shorey v. Gorwho have an interest in it... . I should think rell (1783)? held that without long usage a jury right in giving almost any valuation sufficient to confer a prescriptive right, _which the party thus injured should think there was no legal basis for preventing a

- -propertoafixtoité newcomer from obstructing a stream. As a , ; result, there were Massachusetts cases The premise underlying the law as that denied any relief against even the

stated was that land was not essentially an substantial diversion of a stream for the

146 , , - Morton J. Horwitz | purpose of irrigation.1° Although it idea that the ownership of property

appears that the Massachusetts courts implies above all the right to develop

soon succeeded in eroding the force of that property for business purposes. Liv, Shorey v. Gorrell by treating the plea in ingston understood that a rule making all prescription as a mere matter of form, injuries from obstruction of water comefforts to escape from the restrictive con- pensable would, in effect, confer an sequences of common-law doctrines con- exclusive right of development on the tinued into the early nineteenth century downstream property. The result, he conas Claims for relief against obstruction by cluded, would be that ‘‘the public, whose

upstream dams became more common. advantage is always to be regarded, Some judges maintained that the com- would be deprived of the benefit which

mon-law action for diversion was simply always attends competition and rivalry.’’ not applicable to the temporary obstruc- Again, in Platt v. Johnson, 14 in which the

tion of water by upstream dams. Others court held in favor of an upstream mill sought to modify the common-law defini- owner whose dam occasionally detained

tion of legal injury in order to permit the flow of water for a number of days, extensive, uncompensated use of water the court observed that the sacred com-

for business purposes. mon-law maxim sic utere ‘‘must be taken The most important challenge to the and construed with an eye to the natural

common-law doctrine was the so-called rights of all.’”’ The court revealed a fundareasonable use or balancing test. Though mentally new outlook on the question of it did not ultimately prevail until the sec- conflicting rights to property: ‘‘Although

, ond quarter of the nineteenth century, a some conflict may be produced in the use handful of decisions early in the century and enjoyment of such rights, it cannot had already laid the ground for its even- be considered, in judgement of law, an tual triumph. In the earliest case, Palmer infringement of right. If it becomes less

v. Mulligan,!2 a divided New York useful to one, in consequence of the

Supreme Court for the first time held that enjoyment by another, it is by accident,

an upper riparian landowner could and because it is dependent on the exerobstruct the flow of water for mill pur- cise of the equal rights of others.’’45

_ poses. The common-law action for inter- These two cases marked a turning

ference with the flow of water, Judge point in American legal development.?® Brockholst Livingston said, ‘‘must be res- Anticipating a widespread movement

trained within reasonable bounds so as away from property theories of natural not to deprive a man of the enjoyment of use and priority, they introduced into

his property.” Courts, Livingston argued, American common law the entirely novel must be prepared to ignore “little incon- view that an explicit consideration of the

veniences” to other riparian proprietors relative efficiencies of conflicting propresulting from obstruction of the natural erty uses should be the paramount test of flow. Otherwise, he reasoned; “he who what constitutes legally justifiable injury. could first build a dam or mill on any pub- As a consequence, private economic loss

lic or navigable river, would acquire an and judicially determined legal injury, exclusive right, at least for some distance, which for centuries had been more or , whether he owned the contiguous banks less congruent, began to diverge. or not; for it would not be easy to build a Change in common-law doctrine, howsecond dam or mound in the same river ever, is rarely abrupt, especially when a on the same side, unless at a considerable major transformation in the meaning of distance, without producing some mis- property is involved. Common lawyers chief or detriment to the owner of the are more comfortable with a process of

first.” gradually giving new meanings to old Palmer v. Mulligan represents the formulas than with explicitly casting the beginning of a gradual acceptance of the old doctrines aside. Thus, it is not sur-


The Transformation in the Conception of Property in American Law

prising that, in periods of great concep- of Story’s formulation. Whenever Angell

tual tension, there emerges a treatise is cited afterwards, though the words be

writer who tries to smooth over existing his, the meaning is supplied by Story. stresses in the law. Some such writers try Story’s opinion is the classically transi-

to nudge legal doctrine forward by tional judicial opinion, filled with ambi-

extracting from the existing conflict prin- guities sufficient to make any future legal ciples that are implicit but have not yet developments possible.?° It opens with a been expressed. Joseph Story’s work in reaffirmation of traditional doctrine: the equity or commercial law comes to mind riparian owner “has a right to use of the

as an example. Others seek to banish water... in its natural current, without novelty and to return the law to an earlier diminution or obstruction...’’?! But and simpler past. Joseph Angell was of even as he stated this principle, Story

the latter variety. seemed to perceive its harsh antidevelopIn his treatise Watercourses, published mental tendencies and he attempted to

in 1824, Angell reaffirmed the common- qualify its rigor. ‘I do not mean to be ,

law view that all diversion and obstruc- understood,” he wrote, ‘‘as holding the tion of the natural flow of water was doctrine that there can be no diminution actionable. His only concession to a rule whatsoever, and no obstruction or

of equal or proportionate use was to impediment whatsoever... for that

observe that since the common-law rules would be to deny any valuable use.... ‘are undoubtedly liable to a rational and The true test of the principle and extent liberal construction,’ they would not of the use is, whether it is to the injury of allow “a right of action for every trivial the other proprietors or not.’ Some

and insignificant deprivation.’’!7 “diminution in quantity, or a retardation

Although in Palmer v. Mulligan the New or acceleration of the natural current’’ is

York court had attempted to justify its permissible if it is ‘not positively and break with the past by showing that the sensibly injurious... .’’22 injury to the lower mill owner was slight, By insisting, after all, that the true test Angell attacked the decision as “cer- of the riparian doctrine was reasonable tainly contrary to the authorities, and use, but that reasonableness meant simobviously unjust.’’*® In short, Angell’s ply the absence of injury, Story managed treatise asserted the traditional common- to finesse the pressing problem of deter_ law view that the only test for a reason- mining the extent to which conflicting able use of water was the absence of all and injurious uses of property could be

but the most trivial injury. regulated in the interest of economic Though Angell sought to consolidate development. Despite his invocation of

the past not a moment too early, his the reasonable-use formula in Tyler,

efforts hardly counted. The common law however, it is clear from later opinions? is especially cruel to those whom it casts that he, like Angell, wished to perpetuate aside. It either ignores them, soon forget- the principle of natural flow.?4

ting that they ever existed, or, more Tyler v. Wilkinson, which spawned a usually, uses them as authority for propo- line of decisions opposed to all diversion sitions they did not accept. Angell’s fate or obstruction of water regardless of any

lay somewhere in between. In 1827, Jus- beneficial consequences,25 marks the tice Story wrote his influential opinion in nineteenth-century high point in articuTyler v. Wilkinson, citing all manner of lating the traditional conception of propcontradictory authority, including, of erty that had already come under attack.

course, Angell’s treatise. Thereafter, Not only did it express a preproductive

Story was taken to have merely restated view of property as entailing the right to Angell’s position and the clear inflexibi- undisturbed ownership free from all out-

lity of the latter’s analysis was forever side interference, but proceeding from replaced by the soothing, oracular quality eighteenth-century conceptions of abso-

148 , , Morton J. Horwitz , lute property rights, it condemned ali during the entire previous history of the

conflicting injurious uses of land without common law.?9 Under the powerful influ-

consideration of whether such exploita- ence of this rapid development, judges tion would maximize total economic began to understand that the traditional

welfare. _ - | rights of property entailed the power to

_ Yet, by acknowledging that the utilitar- exclude would-be competitors and that ian criterion of valuable use was the ulti- some injurious use of property was an

mate source of legal rules, Story’s inevitable consequence of any scheme of reasonable-use standard became almost competitive economic development. immediately an open-ended formula They sought to free the idea of property through which common-law judges from its exclusionary bias by enlarging could implement their own conceptions the range of noncompensable injuries. of desirable social policy. As a result, The increasing frequency with which Tyler v. Wilkinson is cited during the courts appealed to the idea of damnum second quarter of the nineteenth century absque injuria®° seems to have occurred more often to support than to condemn in direct proportion to their recognition

the reasonableness of a mill’s interfer- that conflicting and injurious uses of

ence with the flow of water. 7 property were essential to economic The effort to free property law from its improvement.

antidevelopmental premises was still The most dramatic departure from

very much a struggle at mid-century. As common-law riparian principles took late as 1852, Massachusetts Chief Justice place in Massachusetts, where, ever since

Shaw still found it necessary to argue 7 the colonial mill acts, it had been the that the law did not bar all obstructions practice to confer privileges on mill

of a watercourse, “without diminution, owners in order to promote the growth of acceleration, or retardation of the natural industry. As mills proliferated, a new set current,” else ‘“‘no proprietor could have of technological considerations began to any beneficial use of the stream, without upset conventional legal doctrine. Since

an encroachment on another’s ~ the amount of water power that a mill

right... .’’2© By the time of the Civil War, could generate depended largely on the however, most courts had come to recog- fall of water, an increase in the height of nize a balancing test, making ‘‘reasonable a lower dam often reduced the fall of use”’ of a stream ‘‘depend on the extent of water from an upper dam. At the same

detriment to the riparian proprietors time, the construction of large integrated

below.”’27 a | | cotton mills after 1815 unleashed such an

7 oe —— enormous demand for water power that, — ‘‘THE USAGES AND WANTS OF THE as one observer noted in 1829, “in very

COMMUNITY” | | , many cases, only one of many proprietors

| a can, in fact, improve a (stream) because

It is important to appreciate the central the occupation of one mill site may role that the refashioning of American render the others useless. Which propriwater law to the needs of industrial etor shall, in such case, be preferred?’’>?

development played in the more general Chief Justice Shaw pondered this questransformation of the law of property in tion in Cary v. Daniels.3? “One of the the nineteenth century. Between 1820 beneficial uses of a watercourse,” he and 1831 the productive capacity of began, ‘‘and in this country one of the American cotton mills increased six- most important, is its application to the fold.28 Joseph Angell noted that more working of mills and machinery; a use cases on the subject of water rights had profitable to the owner, and beneficial to been decided in the years between 1824 the public.” Proceeding from this new and 1833, when the first and second edi- utilitarian orthodoxy, Shaw stated a legal tions of his Watercourses appeared, than doctrine strikingly different from Story’s

| 149

The Transformation in the Conception of Property in American Law

earlier formulation. Not only did the law could also have demanded, a half-cen-

require “‘a like reasonable use by the tury earlier, that equality of use be

other proprietors of land, on the same achieved through compensation of exist-

stream, above and below,” but it also ing riparian owners. In the nineteenth

took account of the ‘‘usages and wants of century, however, there were few limits the community’ and “the progress of — to the dominant mentality of maximiza-

improvement in hydraulic works.” It tion. When proportionate use was

required that ‘‘no one can wholly destroy regarded as more efficient than priority,

or divert’’ a stream so as to prevent the proportionality became the standard of water from flowing to the proprietor reasonable use. When, in turn, proporbelow, nor “wholly obstruct it’ to the tionality stood in the way of the efficient disadvantage of the proprietor above.33 use of water resources, the law returned Thus, despite its invocation of ‘‘reason- to priority as the standard of reasonable

able use,” Shaw’s formulation tended to use. | erode a standard of proportionality: a As Cary v. Daniels demonstrated, the

mill owner who did not ‘‘wholly”’ doctrine of reasonable use could assimiobstruct a stream might claim that ‘‘the late its historic antagonist—the rule of needs and wants of the community”’ jus- priority—and thereby make monopoly _

tified his using more than a proportion- reasonable once again. Once the question

ate share of the water. of reasonableness of use became a ques-

That Shaw intended this result is clear tion of efficiency, legal doctrine enabled from Cary v. Daniels itself, in which the common-law judges to choose the direcchief justice expressly rejected propor- tion of American economic development. _ tionality under the circumstances ‘‘grow- By the time of Cary v. Daniels, they were

ing out of the nature of the case.’’34 so captivated by the spirit of improveUnder manufacturing conditions then ment that they were willing to manipu-

existing, he observed, beneficial uses of late the concept of property to conform to water were often, of necessity, mutually their own notions of the needs of indusexclusive. Where the power needs of par- trialization. In the seventeen years after

ticular manufacturing establishments Tyler v. Wilkinson, the direction of the were such that maximum exploitation of law had turned entirely around.

limited water resources required a

monopoly, “it seems to follow, as a nec- Conclusion essary consequence from these _ princi-

ples, that... the proprietor who first The American conception of property

erects his dam for such a purpose has a in the period between the Revolution and right to maintain it, as against the propri- _— the Civil War was changed to permit the etors above and below; and to this extent, destruction of older forms of property by

prior occupancy gives a prior title to newer agents of economic development.

such use.’’35 In the process of change, land came to be —

Shaw’s opinion is premised on the viewed almost exclusively as a productdesirability of maximizing economic ive asset, and ownership of property was development even at the cost of equal justified not for its own sake but for its distribution. There was, of course, no rea- contribution to increased national son why he could not have held that the wealth. Legal doctrines, in turn, were permissible limits of economic growth transformed by this instrumental concepwere reached at the point at which tion of property. At the beginning of the exploitation of water resources was century, property law tended to encourequal, that large cotton mills had to pay age high-risk investment through a doc-

their own way to the extent that their trine of priority which conferred

operation exceeded the limits of propor- exclusive property rights on the first tional appropriation. Indeed, judges developer. By the middle of the century,

150 , Morton J. Horwitz

however, the law had shifted to a reason- the changing and often unstable utilitarable use or balancing test which allowed ian standard of efficiency, the American - newer entrants to compete while destroy- conception of property was harnessed to

ing the claims that existing property the paramount goal of economic owners had acquired under older legal development. doctrines. In the process of responding to

Leonard W. Levy | The Law of the Commonwealth and Chief Justice Shaw

A society reveals itself in its law. Its The ultimate question of legal history

points of growth and the interests it val- is, how does the law of a given time and ues may be disclosed even in the decision place meaningfully connect with the sociof a seemingly technical and insignificant ety of which it is part? In the United legal question. For example, one case con- States the question is all the more pressfronted Chief Justice Lemuel Shaw with ing because, as was noted by Burke, Tocthe question of a railroad employee’s com- queville, and Dicey, Americans are the

petency to testify as to the delivery of most legal-minded of people. Accordgoods allegedly not delivered by his com- ingly, American legal history should pany. A common-law rule of evidence show in striking fashion how law is

which had “existed for ages’? would have shaped by and in turn shapes the thought

excluded the testimony of an agent in and experience of the American people.

behalf of his principal. But the Massachu- Tocqueville, a jurist in his own country, setts chief justice made an exception to was astonished to discover that “‘scarcely that rule, stating with more candor than is any question arises in the United States characteristic of judges that if the rule which does not become, sooner or later, a were followed, ‘‘business would be subject of judicial debate.’’? In the guise of

greatly impeded.” The decision shows legal disputes between private parties, that the law reflected the needs of a new matters of high policy involving great industry, the railroad. It shows, too, that stakes are referred ultimately to the courts the law was vitally concerned with the for decision. Thus the opinions of judges

future of a recently emergent form of busi- are often political, economic, and social ness, the corporation, for, as Shaw said, to events, as well as legal events.

follow the old rule ‘‘would nearly prevent The relation of the individual to the the operations of corporate companies, state and of the states to the nation; the who must act entirely through various role of the government in the economy;

classes of officers and agents.’’! the private and public interests deemed Reprinted from Leonard W. Levy, The Law of the important enough to secure in permanent Commonwealth and Chief Justice Shaw, 303-321, by and authoritative form; the comparative permission. Copyright, 1957, The President and Fel- valuation placed on different activities

lows of Harvard College. and goals, and on liberty and order; the 151


Leonard W. Levy

points of tension, growth, and power; and where social tensions are neutralized and prevailing conceptions of rights, duties, the present may meet with and learn from and liabilities: all are exposed in the law. the past.

For thirty years, Lemuel Shaw sat as But great judges like Shaw, who revitalchief justice, during an age which he said ize the law so that it may fulfill its funcwas remarkable for its ‘“‘prodigious activ- tion, can channel and legitimatize social

ity and energy in every department of change in as reasoned a way as is possi-

life.’”’3 America was being transformed by ble. This is surely a vital and civilizing the rise of railroads, steam power, the fac- task. Willard Hurst has remarked that the

tory system, and the corporate form of great judges have had an ability ‘‘to

business. A more complex society, urban express the times or foretell the generaand industrial, was superseding the older tion to come.” They were the ones who rural, agrarian one. Only a pace behind ‘“‘saw better where the times led and took the astonishing rate of economic change their less imaginative, less flexible, or less came the democratization of politics and courageous brethren in that direction of life. The federal system lumbered with a minimum of waste or suffering.’’* toward its greatest crisis. During this time Hurst might have been describing Shaw. _ Shaw delivered what is probably a record One of the major themes of his life work number of opinions for a single judge:two — was the perpetuation of what Oscar and thousand and two hundred, enough to fill Mary Handlin have called ‘‘the common-

about twenty volumes if separately wealth idea’’> — essentially a quasi-mer-

collected. | , cantilist concept of the state within a

_ At the time of his appointment to the democratic framework. In Europe where bench, American law was in its formative the state was not responsible to the people period. Whole areas of law were largely and was the product of remote historical

uncultivated, many unknown, and few if forces, mercantilism served the ruling any settled. Although Shaw was not writ- classes who controlled the state. In ing on a completely clean slate, the strat- America men put the social-contract egy of time and place surely presented an theory into practice and actually made

unrivaled opportunity for a judge of their government. The people were the strength and vision to mold the law. state; the state was their ‘“‘Common In estimating the significance of Shaw’s Wealth.” They identified themselves with

career it would be a mistake to search for it and felt that they should share, as of

the ways in which he altered the direction right, in the advantages that it could bring

of social change, for that begins outside to them as a community. The state was the law. Moreover, judges are in an unfa- their means of promoting the general vorable position to act as social engineers interest.

or innovators. They must wait until liti- A theory of the general interest was gious battle casts up an issue for decision. common. Shaw expressed it in his Usage demands that they speak only to address to the Suffolk Bar in 1827 in lanthat issue in its legal character, that they guage he was later to repeat from the do not unburden themselves on the sub- bench. Speaking of the “theory of free

ject at large, and that they stifle their per- government,” he declared: , sonal preferences as to matters of wisdom

or policy. In the course of deciding a It regards men as by nature social, and

given case, they can repair decayed parts endowed with powers adequate to enable of the legal structure or do some remodel- them, by the establishment of government, ing, but an architectural change takes a to provide for defining and securing their - generation of decisions. Individual judges social rights, and under a natural obligation do well to keep the law in a state of good to respect those of others, and it presupposes

preservation so that it may be a place that all power resides originally in the whole

| 153

The Law of the Commonwealth and Chief Justice Shaw

people as a social community, that all politi- Shaw, the commonwealth idea gave rise cal power is derived from them, is designed to legal doctrines of the public interest by to be exercised solely for the general good, which the power of the state to govern the and limited to the accomplishment of that economy was judicially sustained.

object; that no powers are, or ought to be, The idea “that some privately owned , vested in the government, beyond those corporations are more public in character which are necessary and useful to promote than others,” as Edwin Merrick Dodd the general security, happiness, and pros- noted, “had already begun to emerge in

, perity; and that all powers not delegated judicial decisions before 1830.2 The

remain with the people.® grant of powers of eminent domain to

, early turnpike and canal companies had

The commonwealth idea precluded the been upheld on grounds that they were laissez faire state whose function was sim- public highways, although privately ply to keep peace and order, and then, like owned. The mill acts, which originated as

alittle child, not be heard. The people of a means of promoting water-powered Massachusetts expected their common- gristmills, had also been sustained in wealth to participate actively in their eco- early decisions on grounds that a public nomic affairs. As the Handlins point out, purpose was served. In this respect, the

they found ‘“‘manifestly erroneous’ the work of Theophilus Parsons and Isaac notion that the economy should be left to Parker, Shaw’s predecessors, provided its own devices, that the people indivi- him with useful precedents in support of dually, rather than their government, “‘are legislation that advanced both the comthe judges of their interests.”’ That princi- monwealth idea and industrial interests.

ple was considered ‘‘subversive to the end On the other hand, the earlier judges and aim of all governments; and ... regretted the extension of the old gristmill

utterly impracticable.’’” acts to new manufacturing corporations.

Where risk capital feared to tread or Shaw, by contrast, warmly accepted the needed franchises, powers of incorpora- mill acts because he believed that industion, or the boost of special powers like trialization would bring prosperity and eminent domain, the duty of the state was progress to the Commonwealth. Accordto subsidize, grant, and supervise the ingly he declared that ‘‘a great mill-power whole process in the interests of the gen- for manufacturing purposes” was, like a eral welfare. But regulation was not res- railroad, a species of public works in tricted to those special interests which which the public had a great interest. He had been promoted by government aid. even placed “steam manufactories” in the

Banks, insurance companies, liquor same class as water-powered mills, as

~ dealers, food vendors, and others were all devoted to a public use, although the

subjected to varying degrees of control, former were never granted powers of emithough the public trough had not been nent domain.!° His opinions show reason open to them. As the Handlins say, ‘‘Mas- for believing that he would have sussachusetts observers conceived of the ben- tained far-reaching factory regulation if eficent hand of the state as reaching outto’ he had had the opportunity. In such a

~ touch every part of the economy.’’’ case, which never arose, the common_ The commonwealth idea profoundly wealth idea would have explained his

influenced the development of law in support of the legislature. ,

Massachusetts. It was largely responsible Certainly the commonwealth idea for the direction taken by the law of emi- underlay those remarkably prophetic nent domain, for the development of the opinions of Shaw’s that established the police power, and for the general prece- basis of the emerging law of public utilidence given by the courts to public rights ties. The old common law of common over merely private ones. As employed by calling had considered only millers, carri-

154 | Leonard W. Levy

ers, and innkeepers as ‘public employ- of general-welfare or public-interest docments’’; it “knew no such persons as the trines, and doctrines of vested rights common road-maker or the common dominated. water-supplier.’!1 The ‘‘common road- The trend toward legal Spencerianism maker,” that is, the turnpike, bridge, and was so pronounced by the end of the ninecanal companies, were added to the list of teenth century that legal historians con-

public employments or public works centrated on a search for the origins of

while Shaw was still at the bar. But it was doctrines of vested rights, almost as if

Shaw who settled the legal character of contrary doctrines had never existed.

power companies, railroads, and water When touching the pre—Civil War period, suppliers as public utilities, privately it is conventional to quote Tocqueville on owned but subject to regulation for the the conservatism of the American bench public benefit. He would have included and bar, to present American law almost

, even manufacturers and banks. The com- exclusively in terms of Marshall, Story, monwealth idea left no doubt as to and Kent, and to emphasize that the rights whether the state would master, or be of property claimed the very warmest mastered by, its creatures, the corpora- affections of the American judiciary. So tions, or whether the welfare of the econ- familiar is this view of our legal history

omy was a matter of public or private that we may summarize it with a para-

concern. phrase of Tennyson’s ‘‘Northern Farmer, Indeed the police power may be New Style’’:1%

regarded as the legal expression of the commonwealth idea, for it signifies the Proputty, proputty, proputty, proputty supremacy of public over private rights. That’s what the judges and historians say. To call the police power a Massachusetts

doctrine would be an exaggeration, If, however, the work of the state courts

though not a great one. But it is certainly were better known, this view might be no coincidence that in Massachusetts, altered. But Gibson and Ruffin and Black-

with its commonwealth tradition, the ford are little more than distinguished

police power was first defined and carried names, their work forgotten. Shaw’s to great extremes from the standpoint of superb exposition of the police power is vested interests. Shaw’s foremost contri- respectfully remembered, but it is usually bution in the field of public law was to the treated as exceptional, or mistreated as an development of the police-power concept. attempt to confine the police power to the

The power of the legislature ‘‘to trench common-law maxim sic utere tuo ut

somewhat largely on the profitable use of alienum non laedas.

individual property,” for the sake of the Shaw taught that “all property... is common good, as Shaw expressed the derived directly or indirectly from the police power in Commonwealth v. government, and held subject to those

Alger,!2 was consistently confirmed over general regulations, which are necessary

thirty years of his opinions. Three to the common good and general weldecades later, when judges were acting on fare.’’14 Roscoe Pound, in discussing the

the supposition that the Fourteenth ‘extreme individualist view” of the comAmendment incorporated Herbert mon law concerning the rights of riparian Spencer’s Social Statics, the ideas property owners, says the common law expressed in Shaw’s opinions seemed the asked simply, ‘“‘was the defendant acting very epitome of revolutionary socialism. on his own land and committing no nuiShaw’s name was revered, but the impli- sance?’15 But Shaw believed that the cations of his police-power opinions were common law of nuisances, which was politely evaded. In the period between founded on the sic utere maxim, inadeShaw and the school of Holmes and Bran- quately protected the public, because it deis, American law became the graveyard was restricted to the abatement of existing


The Law of the Commonwealth and Chief Justice Shaw

nuisances. He believed that the general findings of a government commission;

welfare required the anticipation and pre- and violated the contract clause by provention of prospective wrongs from the viding for a perpetual injunction against use of private property. Accordingly he the further doing of business, in effect a held that the legislature might interfere revocation of the charter. Rufus Choate with the use of property before its owner probably never argued a stronger case. became amenable to the common law. So But Shaw sustained the statute and the a man could not even remove stones from injunction, peppering his opinion with his own beach if prohibited by the legisla- references to the paramountcy of “the

ture, nor erect a wharf on his property great interests of the community,” the

beyond boundary lines fixed by it. Even if duty of the government to ‘“‘provide secu-

his use of his property would be ‘“‘harm- rity for its citizens,’ and the legitimacy

less” or ‘‘indifferent,’ the necessity of of interferences with ‘‘the liberty of

restraints was to be judged ‘“‘by those to action, and even with the right of propwhom all legislative power is intrusted by erty, of such institutions.’’18

the sovereign authority.” Similarly the In a second bank case of the same year,

‘“reasonableness”’ of such restraints was a 1839, the court refused ‘‘to raise banks matter of “expediency” to be determined above the control of the legislature.’”’ The by the legislature, not the court. The sim- holding was that a charter could be disple expedient of having a precise statu- solved at the authority of the legislature,

tory rule for the obedience of all was under the reserved police power, without

sufficient reason for a finding of a judicial proceeding. *°

constitutionality.!° It has been said that from the standThus Shaw, using the commonwealth point of the doctrine of vested rights the

idea, established a broad base for the most reprehensible legislation ever police power. He carried the law’s con- enacted was the prohibition of the sale of ception of the public good and the power liquor. Such legislation wiped out the

of government to protect it a long way value of existing stocks and subjected from the straitjacketing ideas of Kent and violators to criminal sanctions, their Story. Their position may be summed up property to public destruction. Similarly, in Blackstone’s language that “‘the public buildings used for purposes of prostitugood is in nothing more essentially inter- tion or gambling might, on the authority

ested than the protection of every indi- of the legislature, be torn down. The

vidual’s private rights.’’27 question presented by such statutes was A review of a few other decisions of whether the police power could justify the Shaw court on the police power will uncompensated destruction of private

illustrate that the chief justice’s Alger property which had not been appro-

opinion was more than rhetoric. The priated for a public use. The power of the authority of the legislature to shape pri- Commonwealth over the health and vate banking practices in the public morals of the public provided Shaw with

interest was unequivocally sustained in the basis for sustaining legislation divesttwo sweeping opinions. In one, Shaw ing vested rights.2° On half a dozen occa-

said that a statute intended to prevent sions, the Wynehammer doctrine of

banks from “becoming dangerous to the substantive due process of law was repupublic’’ was attacked as unconstitutional diated in such cases.

on the authority of Marshall, Story, and Regulation of railroads was another Kent. The statute allegedly operated subject for the exercise of the police

retroactively against the bank in ques- power, according to the Shaw court. The tion; constituted a legislative assumption same principles that justified grants of of judicial power because it required the eminent domain to railroads, or to canals, Supreme Judicial Court to issue a prelim- bridges, turnpikes, power companies,

inary injunction against banks on the and water suppliers, also provided the


Leonard W. Levy , basis for sustaining controls over their The latitudinarian attitude of the Shaw

, rates, profits, and services. Railroads, court toward the police power was

said Shaw, were a “public work, estab- unquestionably influenced by the strong lished by public authority, intended for tradition of judicial self-restraint among

the public use and benefit.’’?? The power —- Massachusetts judges. Although they

_ to charge rates was ‘‘in every respect a never questioned their power to hold a public grant, a franchise... subject to statute unconstitutional, they exercised certain regulations, within the power of that power only in rare and clear-cut

government, if it should become cases. Theoretically, the explanation for

excessive.”’?? — | such restraint was the doctrine of separaThese dicta by Shaw became holdings tion of powers. The courts would not

at the first moment the railroads chal- invalidate an act whose wisdom they lenged the ‘‘reasonableness”’ of the rates doubted on grounds of policy if it was

and services fixed by government passed within the compass of the legisla-

railroad commissions. ‘‘Reasonableness”’ ture’s delegated powers. Why Theophilus was held to be a matter for determination Parsons and Isaac Parker should have

by the legislature or the commission to adhered so scrupulously to this rule which it delegated its powers. Those when the federal judiciary and some powers, in turn, were broadly construed. other state courts did not is hard to The court would not interfere with the understand, unless judicial self-restraint

regulatory process if the railroads had the was an outgrowth of the commonwealth

benefit of notice, hearing, and other fair idea. procedures.?3 Due process of law to the Shaw carried on the tradition of the Shaw court meant according to legal Massachusetts judiciary in good faith. forms, not according to legislation which When he became chief justice, there were

the court approved or disapproved as a only two reported cases in which enact-

matter of policy. ments had been held void by the _A final illustration will show the scope Supreme Judicial Court. One related to of the police power as conceived by the an unimportant and expired act of Con-

Shaw court. It was held, in an opinion by __ gress; the other to a special resolve of the

the chief justice, that because the right to Massachusetts legislature which sususe land washed by tidewaters was a pended the statute of limitations in favor

public rather than a private right, the of a particular creditor.25 During the government could validly authorize the thirty years that Shaw presided, there

uncompensated flooding of a tidemill- were only ten cases, one unreported, in

owner’s property, destroying much of his which the Supreme Judicial Court voided business.?4 This decision rode roughshod legislative enactments. over every doctrine of vested rights. The Four of these cases in no way related to owner had the misfortune to be located __ the police power. One involved a special where the “mere regulation of a public _ legislative resolution confirming a_pri-

right, and not a taking,’ in Shaw’s vate sale that had divested property

words, had caused his ruin. Here was a rights of third persons without compenharsh application of the commonwealth __ sation.26 The second concerned an act by idea based on the theory that the owner’s which Charlestown was annexed to Bos-

loss had been inflicted by the govern- ton without providing the citizens of

ment for the greater good of the commu- _ Charlestown with representative districts nity; moreover, that he was compensated and an opportunity to vote.?7 The third, by sharing with others in the advantages an unreported case decided by Shaw sit-

which derived from regulations of the ting alone, involved the ‘‘personal liberty public rights. As for compensation in the act,’ by which the state sought to evade form of damages, it was a case of dam- Congress’s Fugitive Slave Law.?® Here

num absque injuria. Shaw felt bound by the national Consti- _


| The Law of the Commonwealth and Chief Justice Shaw tution and by a decision of the Supreme corporation for a second time, in effect Court of the United States. In the fourth doubling a liability which had been paid case he invalidated a state act which dis- off, and to repeal an explicit permission pensed with the ancient requirement of for another corporation to increase its — grand-jury proceedings in cases of high capitalization in return for certain sercrimes.”° In each of these four, the deci- vices rendered.3? The legislature in all sions are above any but trifling criticism. three cases had passed a high threshold Of the six cases bearing on the police of judicial tolerance for governmental

power, three involved legislation egre- interference with the sanctity of con-

giously violating procedural guarantees tracts. The decisions were hardly excepthat are part of our civil liberties.*° The tional considering the facts of the cases statutes in question had validly prohi- and their dates—between 1854 and 1860, bited the sale of liquor. But they inva- after scores of similar decisions by Feder-

lidly stripped accused persons of alist, Whig, and Jacksonian jurists alike

virtually every safeguard of criminal jus- in state and federal jurisdictions. | tice, from the right to be free from unrea- The striking fact is that there were so sonable searches and seizures to the few such decisions by the Shaw court in rights that cluster around the concept of thirty years. Handsome opportunities fair trial. Shaw’s decisions against these were provided again and again by liti-

statutes, like his decisions ensuring the gants claiming impairment of their

maintenance of grand-jury proceedings charters of incorporation by a meddleand the right to vote, were manifestations some legislature. But the court’s deciof judicial review in its best sense. There sions were characterized by judicial were also dicta by Shaw on the point that self-restraint rather than an eagerness to | the legislature cannot restrain the use of erect a bulwark around chartered rights. property by ex post facto laws, by bills In that sense the three cases wherein stat-

of attainder, or by discriminatory utes were voided for conflict with the

classifications. , contract clause were exceptional.

Thus the limitations placed upon the Generally the attitude of the court was police power by the Shaw court were typified by Shaw’s remark that “‘immuniindispensable to the protection of civil ties and privileges [vested by charter] do

liberties. not exempt corporations from the opera-

The only exception to this generaliza- tions of those laws made for the general tion consists of the limitation derived regulation .. .”33 He habitually construed from the contract clause of the United public grants in favor of the community States Constitution. But there were only and against private interests. When charthree cases during the long period of tered powers were exercised in the pubShaw’s chief justiceship in which this lic interest, he usually interpreted them clause was the basis for the invalidation broadly; but when they competed with of statutes. In each of the three, the stat- the right of the community to protect utes were of limited operation and the itself or conserve its resources, he interdecisions made no sacrifice of the public preted chartered powers narrowly. To be interest. The legislature in one case sure, he held that the police power could attempted to regulate in the absence of a in certain respects be contracted away in

reserved power to alter or amend public return for some public benefit to be contracts; the court left a way open for gained by the contract. But he did not the legislature’s purpose to be achieved — permit the public control over matters of under common law.?! In the other two health, morals, or safety, nor the power of

cases, regulatory powers had been eminent domain, to be alienated by the

reserved but were exercised in particu- contract clause. , larly faithless and arbitrary ways: to In the face of such a record it is misincrease substantially the obligations of a leading to picture state courts assi-


Leonard W. Levy

duously searching for doctrines of vested incidental to the promotion of the public

rights to stymie the police power. Cer- welfare. No general regulatory statute tainly no such doctrines appeared in the was invalidated while he was chief

pre—Civil War decisions of the Supreme justice. Judicial Court of Massachusetts, except

for the one doctrine derived by John Mar- The idea of individualism was

shall from the contract clause and so expressed in the law, cheek by jowl with sparingly used by Shaw. The sources the commonwealth idea, but it was an from which vested-rights doctrines were individualism that differed from that derived by others—the higher law, natu- associated with the laissez faire state of

ral rights, the social compact, and other the fin de siécle. It did not imply an sources of implied, inherent limitations absence of restraints upon private ecoOn majoritarian assemblies — were nomic enterprise, though it did imply

invoked by Shaw when he was checking that individuals were economically selfimpairments on personal liberties or tra- sufficient. In constitutional law, individditional procedures of criminal justice. ualism meant that a man’s natural rights If this picture does not fit the steoeo- to life, liberty, and property could not be

type of conservative Whig jurists, the ste- fettered by the state except by due reotype may need revision. True enough, process of law; nor could property be

Shaw was capable of warning against the appropriated to any use but a public one “encroachments of a wild and licentious and then only upon just compensation.

democracy’ or against the ‘irregular The more aggressive individual rights,

action of mere popular will.’’34 He could such as freedom of speech, press and reliapplaud the restraints fixed by a well-bal- gion, were also safeguarded. In criminal

' anced constitution, call for the ‘‘best law individualism was apparent in the

members” of society to direct the govern- most fundamental of premises: a crime

ment, and exalt the virtues of private may be commited only by a free moral property and the sanctity of chartered agent who acts voluntarily, is accountrights. Such rhetoric, however, was rare able for his conduct, and is the object of

in his judicial utterances and was far retributive justice. outweighed by his affirmations of the The individualism of both criminal power of government to ‘‘promote the and constitutional law derived from the general security, happiness, and prosper- incorrigibly individualistic common law,

ity” of the whole community. which placed an unlimited valuation

On the great issue which has historic- upon personal liberty and property. The ally divided liberals from conservatives common law knew society only as so

in politics—government controls over many John Does and Richard Roes,

property and corporations—Shaw sup- which is to say that it had scant regard ported the government. Even when the for society collectively. Social and ecocommonwealth idea was being eroded nomic problems were reflected in the away by those who welcomed the give- common law merely as conflicts of peraway state but not the regulatory state, sonal interest between contending parShaw was still endorsing a concept of the ties. They might possess an unequal

police power that kept private interests status and power; their case might under government surveillance and involve great and grave social interests. restraint. He would not permit the com- But to the common law, indifferently monwealth idea to become just a ratio- neutral and, in the hands of lesser judges,

nale for legislative subventions and generally oblivious to public policy, the

grants of chartered powers, with business parties were theoretically interchangeas the only beneficiary. To Shaw, govern- able personalities to be dealt with on

ment aid implied government control, equal terms and with scant regard for because the aid to business was merely others. The system made for impartial


The Law of the Commonwealth and Chief Justice Shaw

justice and protected the rights of per- market. When, for example, the South sons and property; but its justice was Boston Iron Company bought out a sharesometimes harsh or indifferent to the holder at a price conditioned upon his

general good.*> bond that he would never thereafter

The hero of the common law was the ' engage in the iron business, the Shaw — property-owning, liberty-loving, self-reli- court found a violation of a common-law

ant, reasonable man. He was also the _ rule that ‘bonds in restraint of trade are hero of American society, celebrated by void.’’ This rule the court said was Jefferson as the freehold farmer, by “suited to the genius of our government Hamilton as the town merchant, by Jack- and nature of our institutions. It is

son as the frontiersman. Between the founded on great principles of public

American image of the common manand ___ policy and carries out our constitutional

the common law’s received ideal of prohibition of monopolies and exclusive

Everyman there was a remarkable privileges.’’38

likeness. The court enumerated five specific In Shaw’s time social conditions pro- considerations to prove the “unreason-

vided a congenial climate for the bur- ableness”’ of contracts in restraint of geoning of this individual in law and in trade.3° The first, quite interestingly, prosociety. America enjoyed an open class tected individuals from themselves: system in which power was fluid and

plural, and everyone, including the | 1. Such contracts injure the parties makindustrial worker, lusted after capitalistic ing them, because they diminish their’ success. Where ‘‘the mentality of an inde- means of procuring livelihoods and a com-

pendent entrepreneur’’ prevailed, as petency for their families. They tempt

Louis Hartz observed, ‘‘two national improvident persons, for the sake of present impulses are bound to make themselves gain, to deprive themselves of the power to felt: the impulse towards democracy and make future acquisitions. And they expose the impulse towards capitalism.”3° Both such persons to imposition and oppression. made the ‘‘extreme individualism’’37 of , the common law acceptable. The other considerations, enumerated

Individualism and the commonwealth Py the court, equally reflected the values idea were by no means incompatible, and spirit of the time: despite certain logical inconsistencies. 2. They tend to deprive the public of the The “common law itself punished the services of men in the employments and injurious use of property by individuals, capacities in which they may be most use-

a fact which Shaw made a point of depar- ful to the community as well as themselves.

ture for expansion of the police power. 3. They discourage industry and enterThe corporation, an individual in con- prise, and diminish the products of ingenu-

templation of law, although soulless, ity and skill. represented the collective enterprise of 4. They prevent competition and

many individuals, as did the labor union. enhance prices.

And both were smiled upon by the com- 5. They expose the public to all the evils mon law as construed by Shaw. Yet the of monopoly. corporation also represented a threat to

strictly individualistic enterprisers, and The fifth consideration, declared the on their behalf a grant of incorporation court, ‘‘especially is applicable to

was accompanied by public governance wealthy companies and large corporaof corporate organization and policy. tions, who have the means, unless res-

It was also on behalf of individuals, trained by law, to exclude rivalry,

and the community too, that the common monopolize business and engross the |

law frowned upon monopolies and market. Against evils like these, wise sought to preserve a free competitive laws protect individuals and the public,


Leonard W. Levy

by declaring all such contracts void.’’4° = when he left the warmth of a stalled train

The ‘‘wise laws’ of this case were judi- to walk out in the cold in search of an cial, not legislative, in character, but con- inn, rather than wait with the other passtituted state action nonetheless. The sengers for a rescue sleigh. The chief jus-

relationship between the commonwealth tice was right in ruling that because

_ idea and individualism is clear enough. passengers can take care of themselves, The common law did not often protect __ the liability of a common carrier toward individuals from themselves, from mono- them is less than that toward goods polies, or from anything. It tended more entrusted to the carrier’s care by a ship-

strongly to express its individualism not per. Yet when an accident occurred by tenderness but by harshly and uncom- despite all precaution, Shaw held

promisingly treating men as free-willed, railroads liable for damage to freight, but self-reliant, risk-and-responsibility-taking not for injuries to passengers. They took

individuals. The consequences of such the risk of accidents that might occur

an attitude were, as Roscoe Pound noted, regardless of due care.

a strict insistence upon full and exact The rigorous individualism of the com-

performance of all duties legally under- mon law was especially noticeable in the taken, without allowance for accident or | emergent doctrine of contributory negli-

extenuating circumstances and without gence, of which Shaw was a leading mercy for defaulters. If a man were exponent.42 That doctrine required a

tricked or coerced into a legal transac- degree of care and skill which no one but tion, said Pound, the law might permit the mythical ‘“‘prudent’’ or ‘“‘reasonable’’ him to sue for the wrong, but declined to man of the common law could match. A set aside the transaction. “If he could not misstep, however slight, from the ideal guard his own interests, he must not ask _— standard of conduct, placed upon the

the courts, which were only keeping the injured party the whole burden of his peace, to do so for him... In other loss, even though the railroad was also at words, it held that every man of mature fault and perhaps more so. Comparative age must take care of himself. He need rather than contributory negligence not expect to be saved from himself by would have been a fairer test, or perhaps legal paternalism... When he acted, he some rule by which damages could be was held to have acted at his own risk apportioned. with his eyes open, and he must abide Probably the furthermost limit of the the appointed consequences.’’4! One common law’s individualism in accident might add that the spirit of the common cases was expressed in the rule that a law was epitomized in the maxim, “Let right to action is personal and dies with the buyer beware”’ (caveat emptor). — the injured party. This contributed to the The spirit manifested itself daily in the related rule that the wrongful death of a Shaw court in commercial law andinthe human being was no ground for an law of private contracts. But its most action of damages. But for the intervenimportant manifestation, from the stand- tion of the legislature, the common law point of social consequences, was in would have left the relative of victims of cases of railroad and industrial accident, fatal accident without a legal remedy to which fell within the compass of tort | obtain compensation. It would also have law. Here the fierce individualism of the made it more profitable for a railroad to common law, even though reflecting the kill a man outright than to scratch him, self-reliance that America so highly __ forifhe lived he could sue. valued, was devoid of humane considera- The fellow-servant rule was the most tions. No doubt the law could not have far-reaching consequence of individualbeen expected to reward fools for their ism in the law as Shaw expounded it. foolishness. Shaw would not allow dam- The rule was that a worker who was ages to a man whose fingers were frozen injured, through no fault of his own, by


The Law of the Commonwealth and Chief Justice Shaw

the negligence of a fellow employee, employee’s assumption of risk into his could not maintain a claim of damages contract of employment. This legal ficagainst his employer. Shaw formulated tion also reflected the individualism of a , this rule at a strategic moment for time when it was felt that free men could employers, because as industrialization not be bound except by a contract of their expanded at an incredible pace, factory own making. and railroad accidents multiplied fright- The public policy which Shaw confieningly. Since the fellow-servant rule dently expounded in support of his read-

threw the whole loss from accidents ing of the law similarly expressed the upon innocent workers, capitalism was independent man: safety would be prorelieved of an enormous sum that would moted if each worker guarded himself otherwise have been due as damages. against his own carelessness and just as

The encouragement of ‘infant indus- prudently watched his neighbor; to tries’ had no greater social cost. remove this responsibility by setting up

The fellow-servant rule was unmistak- the liability of the employer would alleably an expression of legal thinking pre- gedly tend to create individual laxity dicated upon the conception that a free rather than prudence. So Shaw reasoned. man is one who is free to work out his It seems not to have occurred to him that own destiny, to pursue the calling of his fear of being maimed prompted men to choice, and to care for himself. If he safety anyway, or that contributory negliundertakes a dangerous occupation, he gence barred recovery of damages, or that voluntarily assumes the risks to which he freeing the employer from liability was has exposed himself. He should know no inducement to employ only the most that the others with whom he will have careful persons and to utilize accidentto work may cause him harm by their saving devices. Nor, for all his reliance

negligence. He must bear his loss upon the voluntary choice of mature

because his voluntary conduct has men, did it occur to Shaw that a worker

implied his consent to assume it and to undertook a dangerous occupation and relieve his employer of it. On the other ‘“‘consented’’ to its risks because his hand, there can be no implication that poverty deprived him of real choice. For the employer has contracted to indem- that matter, none of these considerations nify the worker for the negligence of any- = prompted the legislature to supersede the

one but himself. The employer, like his common law with employers’ liability employees, is responsible for his own and workmen’s compensation acts until conduct, but cannot be liable without many decades later. Shaw did no vio-

fault. lence to the spirit of his age by the felOn such considerations Shaw low-servant rule, or by the rules he

exempted the employer from liability to applied in other personal injury cases, his employees, although he was liable to particularly those involving wrongful the rest of the world for the tortious acts death. In all such cases his enlightened which they committed in the course of views, so evident in police-power cases, their employment. It is interesting to note were absent, probably because govern-

that Shaw felt obliged to read the ment action was equally absent.


Part Five

Crime, e GC e e Justice, ]e Criminal

and Violence

The history of criminal justice has been running through the pages of this book, one of the most obscure and neglected the relationship of law and morality, is corners of the history of American law, touched upon here as well.

and of social history as well. But recently, Richard Maxwell Brown’s work on vio-

a large body of interesting and stimula- lence and the vigilante movement deals ting work has appeared. One reason for more directly with violence in American this new interest has been public concern society. Brown attempts to catalog epiover the crime and violence that plague sodes of violence and vigilantism, to put American urban life. People are afraid to them in a broader context. He finds a relawalk the streets of New York and Chicago tionship between class structure and vigi-

at night, a fear that hardly exists in Lon- lantism, and he traces how the don or Tokyo, and the statistics bear them movements respond to social disorder out. and failures in the legitimate legal order.

William Nelson studies criminal justice Brown’s work appeared in a volume on and its enforcement from 1760 to 1810, an the history of violence in America spon-

age of revolution and of fundamental sored and issued in 1969 by the National change in the functions of criminal jus- Commission on the Causes and Preventice. Colonial society equated crime with tion of Violence. Appointment of the com-

sin, and government spent much of its mission itself was a response to public effort enforcing laws against what we outcries over violence — urban rioting in would now call “‘victimless’’ crimes. But particular. The article by Roger Lane was

by the early nineteenth century, the printed as part of the same collection, but

emphasis had shifted dramatically; gov- it has a rather different message. Brown ernment had turned to the control of looked on vigilante movements as part of crimes against property, particularly to a series of important but sporadic eruptheft. To a certain extent, ‘‘economic dis- tions of violence and disorder in our histress’ lay behind this shift, but Nelson’s tory. Lane argues that the long-term trend study invites us to search for a deeper in the nineteenth century ran in the oppomeaning, and to find it in those social val- site direction from violence. The crime ues that people sought to further through rate, Lane finds, was in the last century, the use of criminal justice. Another theme slowly declining; over the long haul, 163

164 | |

~ Crime, Criminal Justice, and Violence | urbanization had, he argues, a ‘“‘settling, Further Reading literally a civilizing, effect on the popula-

tion involved,” partly because an urban, Lane, Roger. Policing the City: Boston, industrial society cannot ‘‘afford”’ the dis- 1822~—1885. Cambridge, Mass.: Harvard Uni-

orders that can be tolerated in a rural soci- versity Press, 1967.

ety, where “fits of violence’? did not Lewis, Walter David. From Newgate to “disrupt’’ any “vital patterns.’”’ The city Dannemora: The Rise of the Penitentiary in

and the factory need more tractable New York, 1796-1848. Ithaca, Cornell Uniworkers. The machinery of criminal jus- versity Press, 1965. tice — the police in particular — presum- Monkkonen, Eric H. The Dangerous Class: ably helped ‘‘tame”’ the population, aided Crime and Poverty in Columbus, Ohio, and abetted by the schools, churches,and = = 1860~—1885. Cambridge, Mass.: Harvard Uni-

other social institutions. If what Lane sug- versity Press, 1975.

gests in this provocative article is true, Rothman, David J. The Discovery of the then the reader might well ask himself Asylum: Social Order and Disorder in the what, if anything, went wrong in our own New Republic. Boston: Little, Brown, and

more “‘violent’’ generation. Co., 1971.

Williams, Jack K. Vogues in Villainy: Crime and Retribution in Ante-Bellum

South Carolina. Columbia, S.C., University , of South Carolina Press, 1959. ,

William E. Nelson , Emerging Notions of Modern Criminal , — Law in the Revolutionary Era:

An Historical Perspective | Historians have devoted a great deal of much neglected in our legal history. Such attention to studying the law of the early a study requires close attention to trialAmerican colonies, especially the crimi- court records, and the large number of

nal law,! and no jurisdiction has com- these records necessitates limitation to

manded as much attention as the Puritan one locality. Middlesex County, Massacolony of Massachusetts Bay.” One reason chusetts,° was chosen largely for convefor this interest, perhaps, is that Puritan nience, but also because it seems to have criminal law was vastly different from the been more typical of Massachusetts and criminal law of today. Religion “was a perhaps of the United States during the way of life’’> for the early settlers of Mas- period under study than, for example, sachusetts, and all of the Bay Colony’s urban Boston or frontier Berkshire. — , institutions reflected its religious values. The court records indicate that most of

Thus, the early settlers “‘adopt{ed] the the developments which transformed |

Judicial Laws of Moses which were given Puritan criminal law into the criminal law

to the Israelites of Old .. [and] punished of today occurred during the three Adultery ..f{and] Blasphemy, with decades following the American Revolu-

Death.’’4 They equated crime with sin and tion. This article will concentrate upon thought of the state as the arm of God on that period. Of course changes, sometimes earth. Modern law, on the other hand, important ones, had occurred earlier, but rarely seeks to enforce morality and has nonetheless, the criminal law of prerevo-

thrown up a ‘‘wall of separation’’® lutionary Massachusetts was remarkably

between religion and the state. Only inci- similar to that of the Puritan era. The old dentally is today’s criminal considered a Puritan ethic remained strong enough in sinner; first and foremost he is regarded as the 1750s so that crime was still looked a threat to the peace and order of society. upon as sin, the criminal as sinner, and The purpose of this article is to study | criminal law as the earthly arm of God. the forces which have altered criminal Criminal law surely was not the tool of the law since early colonial times — a subject royal government in Boston, which was Reprinted, in abridged form, from New York Univer- unconcerned with the outcome of most

sity Law Review, 42 (1967), pp. 450-466, by cases and, in any event, had little real

permission. | , power to influence that outcome. As a 165


William E. Nelson

result, the chief function of the courts, the which she, like the woman who did primary law-enforcement agencies, marry, was punished. remained, as in the early colonial era, the Also within Blackstone’s category of

identification and punishment of sinners. offenses against God and religion were 27 By 1810, some thirty years after the Rev- prosecutions for violation of the Sabbath, olution, a system of law enforcement sim- 2 for cohabitation, and 1 for adultery. ilar to today’s had emerged. This article These 240 cases accounted for 65 percent

will trace the development of the new of all prosecutions.

system. Statistically the category nextwasmost significant that of offenses against habiThe Substance of the Law: From tations and other private property. Preservation of Morality to Between 1760 and 1775, there were 32 lar-

Protection of Property ceny prosecutions and 15 prosecutions for burglary and breaking and entering — CRIMINAL LAW AT THE CLOSE OF THE which, together with 6 miscellaneous

COLONIAL PERIOD: 1760-1774 cases within this category, amounted to 53 prosecutions, or 14 percent of the No scheme for the classification of total.12 The fact that Blackstone placed crime was ever developed in colonial offenses against property in a separate

Massachusetts. Blackstone did develop a category should not be taken to mean, classification scheme in England, how- however, that in prerevolutionary Massaever, and, by the Revolution, lawyers in chusetts these crimes were prosecuted Massachusetts knew of it.7 It included solely because their commission interoffense against God and religion, offenses fered with the enjoyment of property. against government, offenses against pub- Theft, like fornication and murder, was a lic justice, offenses against public trade sin against God, which government was and health, homicide, offenses against the obligated to suppress.13

person, and offenses against habitations Related to men’s view of crime was

and other private property.® their view of the criminal. The typical Most cases were within the category of | criminal was not, as today, an outcast

offenses against God and religion. from society, but only an ordinary Between 1760 and 1774 there were 370 member who had sinned. Like sin, crime

prosecutions in Middlesex in the Superior could strike in any man’s family or among

and General Sessions Courts. Of these, any man’s neighbors.

210 were for fornication. Since only The court records of the 1760s and

mothers of illegitimate children were 1770s indicate that all elements of society brought into court, one might think that committed crimes. Of forty-seven men fornication was punished, not because it accused between 1770 and 1774 of being

offended God but because it burdened fathers of illegitimate children, eighteen towns with the support of the children.? were laborers, fifteen were farmers,

Such a conclusion would be premature. twelve were artisans, and two were gentAlthough the economic interests of the lemen.!* Moreover, unlike today, a contowns cannot be denied,?° the fact is that victed criminal was not placed in a prison prosecutions were brought even when no and segregated from the rest of society; in economic interests were at stake,11 and the fifteen-year period before the Revoluthe same penalties were imposed in those tion, there was only one instance of a perprosecutions as in cases where economic son being imprisoned for more than one interests may have played a part. That the year.15 Colonial penalties usually did not offense, when committed by a woman _ sever a criminal’s ties with society; fines

who did not marry, happened to burden and mild corporal punishments which her town was of little import; her offense left no permanent mark were the usual against God was the essential evil for chastisements. Nor did the only punish-


Emerging Notions of Modern Criminal Law

ment that was commonly of a long dura- with scarcely a single instance of tion — the sale into servitude of a punishment.’’?9

convicted thief unable to pay treble dam- The law’s attitude toward adultery was ages — result in the thief’s segregation also changing, although the number of from society; rather, its probable effect prosecutions remained relatively conwas to integrate him more fully into soci- stant. In 1793 three divorces were granted

ety by reorienting him toward normal by the Supreme Judicial Court for the

social contacts. commission of adultery, but the guilty

The years after the Revolution brought spouses were never criminally punished. forth vast changes in attitudes toward After 1793 divorces for adultery were regcrime and the criminal. Prosecutions for ular occurrences, yet only: one prosecuvarious sorts of immorality nearly ceased, tion was commenced. This increase in while economically motivated crimes and divorce indicates, not a rise in the inciprosecutions greatly increased. During dence of adultery, but rather the developthis same period, old punishments were ment of an attitude of legal hypocrisy

being discarded and new sanctions which made it possible, at least in divorce

imposed. proceedings, for a court to acknowledge publicly the existence of sin without proTHE DECLINE IN PROSECUTIONS FOR secuting it. OFFENSES AGAINST GOD AND RELIGION A parallel development occurred in paternity litigation. As prosecutions for During the last fifteen years before the fornication ceased, it appears that a quesRevolution, there had been an average of tion arose whether an unwed mother not

fourteen prosecutions for fornication each convicted of the crime could bring a

year [in Middlesex]. The first ten years paternity action against the putative

after the Revolution produced no change. father. One woman instituted such a suit

However, in 1786, the General Court in 1790 and gave bond to appear at the

enacted a new statute for the punishment next term of court to prosecute it. At that

of fornication’® that permitted a woman term, however, a new condition was

guilty of the crime to confess her guilt added to her bond — namely, that she also before a justice of the peace, pay an appro- appear to answer a criminal charge of for-

priate fine, and thereby avoid prosecution nication. Thus, the first attempt by a

by way of indictment in the Court of Gen- woman to sue without first suffering the eral Sessions. Although the new law did consequences of her own misdeed failed. not immediately produce any significant Yet within five years a new attempt had decline in prosecutions,!7 by 1789 only succeeded, and thereafter paternity suits five convictions were recorded. The last by women not punished for their own sin

indictment was returned in 1790, and, succeeded regularly. Allowing such suits after 1791, women stopped confessing was a step even more radical than granttheir guilt, apparently aware that even ing divorce for adultery without prosecutthough they did not confess, they would ing the adulterer. In the divorce cases, the

not be indicted. courts took merely a neutral attitude Prosecutions for Sabbath breaking also toward the sinner. In paternity cases, on

continued at the prewar rate of about two the other hand, the courts not only per year until the mid—1780s, after which, ignored the plaintiff's ‘‘sinner’’ status, but except for a brief interval in 1800—1802,18 also rendered the sinner affirmative help only three cases appear. As a publication in obtaining relief from the consequences

issued in 1816 stated, “[F]or many years of her sin. previous to 1814, the Laws of this State The deemphasis of prosecution for sin against profanations of the Sabbath, had appears to have been related to what the fallen into general neglect... [T]Jhou- Congregational ministry condemned as “‘a sands of violations occurred every year, declension in morals.’’?° President


William E. Nelson

Timothy Dwight of Yale traced the per year for the remainder of the decade, a decline to the French and Indian War and, period of economic difficulty.28 With the especially, to the Revolution, which, he _ return of prosperity in the 1790s,29 the

said, added ‘“‘to the depravation still average dropped to seven per year, and, remaining [from the French War]...a apart from an unexplained rise in 1800— long train of immoral doctrines and prac- 1801,31 remained constant until 1806. tices, which spread into every corner of | Then came the embargo of 1807, depresthe country. The profanation of the Sab- sion,>? and an increase in the average of bath, before unusual, profaneness of lan- theft prosecutions during the remainder guage, drunkenness, gambling, and of the decade to twenty-one per year.?9 lewdness were exceedingly increased.’’?1 Apart from the correspondence in time Others also alluded to habits of card play- of the periods of economic distress and ing and gambling, and to instances of _ two of the periods of increasing prosecusocial vice and illegitimacy.?? Chief Jus- tions, there are other reasons for believtice William Cushing, for example, feared ing that the increases were results of the that ‘‘some men have been so liberal in distress. As indicated by Josiah Quincy,

thinking as to religion as to shake off all Jr., in a speech on the relationship of

religion, & while they have labored to set ‘Poverty, Vice and Crime,” larceny was a up heathen above Christian morals, have crime committed almost entirely by the

shown themselves destitute of all urban poor.34 Court records support this

- morality.”’23 view. Of the thirty-eight theft prosecuNotwithstanding these complaints, a tions in the Supreme Judicial Court

modern author has concluded that there between 1807 and 1809, twenty-seven was no “deep-seated coarseness or gen- were against the urban poor,?> and urban

eral immorality’?* during the closing poor were defendants in fifty-three of years of the eighteenth century. What seventy-one cases in all courts between seems to have occurred after the Revolu- 1784 and 1790.°° It is also significant that

tion was a relaxation, not of private, per- many thought of crime as a product of

sonal morality, but of what con- idleness. Governor Strong, for example,

temporaries referred to as public moral- told the legislature in 1802 that ‘“‘a great ity.25 What occurred was ‘‘a general relax- proportion of crimes are the effects of ing of social customs’’*® — an emergence, idleness.’’37 Such a view indicates that not of significantly more immorality, but crime was often committed by the unemof a new social and legal attitude toward ployed, such as poor laborers unable to

the immorality that had always existed. find work during periods of economic

dislocation. Both the statistical and the impressionTHE INCREASE IN PROSECUTIONS FOR istic evidence suggests, then, that most OFFENSES AGAINST HABITATIONS AND theft was to some extent a consequence

PRIVATE PROPERTY : of poverty. Economic distress was

| apparently causing increasing numbers

In the late eighteenth and early nine- of the poor fo turn to crimes against

teenth centuries, prosecutions for offenses property during the postrevolutionary against habitations and private property years.

greatly increased [in Middlesex], but the

increase did not commence immediately | !HEUSEOF HARD LABOR AS A PUNISHMENT

after the Revolution. From 1776 to 1783,

there was an average of three cases per The third development occurring dur, year, the same as before the Revolution. ing the years between 1776 and 1810 was But in 1784 the number of prosecutions the gradual emergence of hard labor as a quadrupled,?” and then averaged eleven punishment in place of the wide variety

, 169

, Emerging Notions of Modern Criminal Law of penalties used before the Revolution. because the judges thought it a more effi-

Hard labor was first imposed with fre- cacious penalty. At the same time, quency in theft cases. Although there is though, they continued to impose the old

no direct evidence of why the punish- penalties in some cases. As a result, a ment was first used, the reason can be defendant convicted of larceny could, by surmised by tracing the gradual evolu- the early 1800s, look forward to almost tion in the penalties imposed for theft any penalty.*1

during the revolutionary era. Meanwhile, a movement for general

The basic penalty for theft in prerevo- penology reform had begun. Having had lutionary Massachusetts was_ twofold: its origin in Philadelphia in 1776,* this

first, a fine or some sort of mild corporal movement may have been partly responspunishment was imposed on behalf of ible for the legislation of 1785. Any influ-

the government; second, the convicted ence it may have had in 1785, however, thief was required to pay treble damages was slight, for the legislature in that year to the owner of the stolen goods. Enforce- explicitly decided to retain the old punment of the second part of the penalty ishments for certain crimes.4? This was

was apparently difficult, for many directly contrary to the reform move-

thieves simply could not pay. In such cir- ment’s aims, which are best stated in a

cumstances, the owner of the stolen message from Governor Hancock to the

goods was usually authorized to sell the General Court in 1793:

defendant into service for a specified

period varying according to the amount It may well be worthy of your attention to of the treble damages. The market for investigate the question whether the infa-

convict servants must have been mous punishments of cropping [ears] and

depressed, however, for judgments as branding, as well as that of the public whipearly as 1772 contain provisions that, if ping post, so frequently administered in an owner could not sell a defendant this Government, are the best means to prewithin thirty days of his conviction, the vent the commission of crimes, or absodefendant was to be released unless the lutely necessary to the good order of

owner compensated the government for Government or to the security of the people. the costs of keeping the defendant in jail. It is an indignity to human nature, and can The government, it seems, did not want have but little tendency to reclaim the sufto be charged with the burden of support- ferer. Crimes have generally idleness for

ing thieves. Its dilemma, though, was their source, and where offences are not that setting convicted thieves free prevented by education, a sentence to hard excused them from “that grievous ... labor will perhaps have a more salutary [penalty] of being sold in servitude” — effect than mutilating or lacerating the the most severe of the penalties imposed human body... 44

upon them.

The dilemma was resolved in 1785, The movement reached fruition in when the legislature provided for the 1805, when the state prison was reo-

imprisonment of thieves at hard labor,3® pened, ** and corporal punishment and for the state expected that the proceeds of treble damages were imposed for the last such labor would pay the costs of impris- time in a Middlesex county case. oning those so punished.?? Originally hard labor was to be imposed only in THE NEW ATTITUDE TOWARD CRIME AND THE

cases where the old penalty of treble CRIMINAL

damages was not workable,*° but the Each of the three developments dis-

Supreme Judicial Court soon began to ~— cussed thus far was, of course, important |

impose it even in cases where the old in itself. Moreover, in combination with

punishments could be used, apparently an ideological outgrowth of the Revolu- ,


William E. Nelson

tion, they transformed the legal and cious Violation of the Peace and of dansocial attitudes toward crime and the gerous Tendency and Consequence.’’5?

criminal. Before the Revolution, two- By the outbreak of hostilities between the thirds of all prosecutions were for immo- British and Americans in 1774-1775, rality, and crime was pictured as sin. By apprehension of the danger of possible 1810, on the other hand, crime was pro- lawlessness and mob rule had grown into secuted to “‘insure the peace and safety of | an obsession common to all. An example society’’4° and to relieve the public from is the conduct of the people of Groton in the ‘“‘depradations” of ‘“‘notorious offend- sending supplies in 1774 for the relief of ers’’47 and the ‘‘tax levied on the commu- __ residents of Boston. With the supplies,

nity by... privateering’*® of thieves. the town clerk of Groton sent a letter:

More than 50 percent of all prosecutions “The inhabitants of this Town have ... were for theft, and only one-half of 1 per- —— this day sent forty bushels of grain ...

cent for conduct offensive to morality. and we earnestly desire you will use your The criminal in 1810 was no longer envi- utmost endeavor to prevent and avoid all sioned as a sinner against God, but rather mobs, riots, and tumults, and the insultas one who preyed upon his fellow __ ing of private persons and property.’’>3

citizens. This emerging fear of the mob seems to The transition from the attitude of 1760 have been primarily of a political nature.

to that of 1810 seems to have occurred Adams and Hutchinson were not worried

largely during the decade following the that sinners would break into their

conclusion of peace with Britain in 1783. homes and take away their property: nor But the first step in the change began ear- did they fear an individual thief motilier, in the 1760s. During that decade and vated by a longing for personal material the first half of the following one, Massa- gain. Rather, they feared organized chusetts Tories carefully cultivated a fear groups of malcontents bent upon the that rebellion against British authority reconstruction of society. Yet they feared

would lead ultimately to the destruction such political activity because they of all authority. The consequence of expected that it would be economically

rebellion, they maintained, would be that motivated. They were concerned that ‘the bands of society would be dissolved, debtors would grow insolvent*4 and that the harmony of the world confounded, mobs would ‘invade private rights.’’5> In and the order of nature subverted.’’*? In a short, their fear was that the economicseries of grand-jury charges given during ally underprivileged would seek material the 1760s, Chief Justice Thomas Hutchin- gain by banding together to deprive more

son suggested how law should be used to privileged persons of their wealth and

prevent the destruction of authority. standing.

Expressing his concern that “Disorders Although quite real, the new concern are seldom confined to one Point” and had little support in the events of the

that “people who begin with one View, time. During the 1760s and early 1770s, seldom end there,’’>° Hutchinson urged Middlesex County experienced relatively the jurors ‘“‘to point out and bring for- few violent attacks on property; indeed,

ward all Crimes and Offenses against the during those two decades only four

Tranquillity and Order of the Society.’’5! instances of such violence were proseMany Whigs had similar apprehen- cuted. Although there were undoubtedly sions. John Adams was as concerned as additional cases, historians of the Revo-

Hutchinson when, in 1765, a mob of lution are nonetheless agreed that very

rioters broke into a royal official’s home. little violence of the sort Adams and Hut-

“To have his Garden torn in Pieces, his chinson feared did take place during the House broken open, his furniture course of struggle with Britain.*® destroyed and his whole family thrown In the 1780s, however, fears previously into Confusion and Terror, is a very atro- ungrounded were confirmed by a number


Emerging Notions of Modern Criminal Law

of attacks upon authority and property. enforcement of law, and thus security of Between 1781 and 1786, there were four property rights, rested. Thus, when prosecutions for rioting and five for Govenor Hancock, in an address to the

assaults on tax collectors, in one of legislature in 1793, suggested that the which eighteen codefendents had partici- primary function of criminal law was to

pated. Then a most noteworthy attack ensure “the good order of Government

occurred when, on September 12, 1786, ... [and] the security of the people,’’>” he the Court of General Sessions was sched- was saying in effect that it must perform uled by law to meet at Concord. ‘“‘But a two functions: first, it must punish and large armed Force, under the Command deter direct attacks on property, and, sec-

of one Job Shattuck of Groton (as it was ond, it must preserve the power of govsaid) being previously collected had ernment to perform that first function. taken Possession of the Court House to Hancock’s address, which said nothing prevent their sitting, The Justices of the about the preservation of religion and said Court did not attempt to open the morality, further shows that the old theoCourt.’’ Thus did Shay’s Rebellion, cratic view of crime was rapidly dying. A which sought to close the courts to pre- “liberalizing of the older New England

vent the collection of debts, extend east- religious tradition’”’ was occurring, espeward into Middlesex. It led to several cially among the upper classes of eastern

prosecutions. Massachusetts.5® As Chief Justice CushCulminating in open rebellion, these ing explained, when men rejected the old

five years of violence undoubtedly religious traditions, they also rejected strengthened the fear which society’s many of the old moral ones, among them

well-to-do had of the designs of the lower the theretofore unquestioned assumption classes upon their wealth and standing. that government should enforce morality.

The simultaneous increase in the inci- Such men, it would seem, were taking a dence of theft appears to have contri- step toward a modern view of criminal

buted to both a strengthening and a law — that its purpose is to protect men

modification of the fear. Adams and Hut- from unwanted invasions of their rights. chinson, it will be recalled, did not worry At the same time, churchmen and others about individual thieves. A man living in faithful to the old tradition were aban-

1786, however, must have viewed all doning ‘‘the dream of theocracy,” as it

attacks upon property, on the one hand, became “evident that the salvation of the

by poverty-stricken mobs and, on the nation ... had to be won ... with no

other, by poverty-stricken individuals, as assistance from any civil authority.’’ The part of a single phenomenon. What was end result was that criminal law became at stake, ultimately, was the security of secularized; its purpose came to be seen his person and property, which members not as the preservation of morality, but

of the lower classes were seeking to rather as the protection of social order disrupt. They used a variety of tech- and property.

niques: they rioted, they attacked courts With the cessation in the 1790s of antiand tax collectors; they refused to pay governmental violence and prosecutions debts; they entered men’s homes and car- for immorality, criminal law in fact as ried away their possessions. Logically, well as in theory became concerned prithough, their various techniques could be marily with the punishment of theft. Dur-

reduced to two. Some men — the thieves ing the two decades after 1790, and recalcitrant debtors — broke the law prosecutions for various sorts of theft and infringed property rights directly; amounted to 47 percent of all cases. This

others — the rioters and those who in turn produced a further modification

attacked the courts and tax collectors — of the theory of criminal law; by 1810 the worked indirectly by destroying the insti- obsession with mob violence was declin-

tutions of government upon which ing, and the law’s purpose was coming to


William E. Nelson

be seen almost entirely as the relief of the unlike the mere sinners of old, were dif-

public from the ‘‘depradations’’ of ferent from other men. Nor were their dif-

thieves. ferences and their consequent isolation

Meanwhile, the criminal was becoming from society ameliorated by the increasan outcast of society. Prior to the Revolu- ing use of hard labor as a punishment. As tion, all sorts of men became involved in some began to observe soon after 1810,

crime. By 1810, though, the well-to-do long terms of imprisonment did not

rarely became involved with the criminal reform men and enable them to take their

law, and it was greatly to be regretted place in society, but instead confirmed “when the offender has some rank in them in their criminal ways by giving society, with respectable connections them an opportunity ‘‘for corrupting one

who may suffer with him.’’5? Such con- another.’’®° Whereas God could forgive

nections were rare, though, for the the sinner of old, the villain of 1810 kept

poverty of most criminals isolated them returning to crime and was forever confrom the better elements of society on demned to segregation from the society

| | challenged.

whom they preyed. Criminals in 1810, whose peace and prosperity he

Richard Maxwell Brown

Violence and Vigilantism in American History

American violence historically seems to national history. Thus the Revolutionary fall into two major categories. The first is War —both in its origins and its progress negative violence: violence that seems to — was shot through with domestic viobe in no direct way connected with any lence. The Civil War, by which the slave socially or historically constructive devel- eventually gained his freedom and the opment. Varieties of negative violence are union of the nation was assured, engen-

feuds, lynching, riots and crimes arising dered vast waves of violence. The very

from racial or religious prejudice. land we occupy was gained over the cenNegative violence by no means turies in a continuing war with the Indiexhausts the range of American violence. ans. Vigilante violence was used to

Positive violence is a broad term used to establish order and stability on the froncategorize the violence attached to popu- tier. Agrarian uprisings occurred again lar and constructive movements. There and again to ease the plight of the farmer has been a vast amount connected with and yeoman. Labor violence was part and some of the most important events of parcel of the industrial worker’s struggle American history — events that are con- to gain recognition and a decent life.

sidered constructive, positive, and, Police violence has always been invoked

indeed, among the noblest chapters in our to protect society against the criminal and

: the disorderly. Again and again violence

This is an edited and abridged version of two arti- has been used as a means to ends that

cles, ‘‘Historical Patterns of Violence in America,” have been widely accepted and and ‘The American Vigilante Tradition,’ which applauded. appeared in Hugh D. Graham and Ted R. Gurr, The

History of Violence in America: A Report to the Negative Violence

National Commission on the Causes and Prevention of Violence (2 vols., Washington, D.C., U.S. Govern-

ment Printing Office, 1969), vol. 1, pp. 35-64, 121- CRIMINAL VIOLENCE 180. A recently revised and updated version of both

articles appears in Richard Maxwell Brown, Strain The salient facts, chronologically of Violence: Historical Studies of American Vio- arranged are: (1) Organized interstate lence and Vigilantism (New York, Oxford University gangs of criminals are an old story, going

Press, 1975), pp. 3-36, 95-133. well back into the eighteenth-century. (2) 173

174 |

Richard Maxwell Brown

Before the Civil War, the most prevalent tisanship and moonshine whisky in a types of criminal activity — especially in region bedeviled by isolation, poverty, frontier areas — were horse theft and the and ignorance, flamed up as never before. counterfeiting of the myriad private bank- The formal law barely operated; its power

notes then in circulation. (3) After the was manipulated for selfish purposes by

Civil War a new era of crime began with closely knit political and family factions. the popularization of train robbery by the Because regular law and order were such Reno brothers of Indiana and bank rob- frail reeds, families and individuals came bery by the James-Younger gang of Mis- increasingly to depend upon their own

- souri. (4) The modern era of big-city strong arms. Each feuding family for the organized crime with its police and politi- sake of self-defense developed its own cal connections began to emerge in the clan leader: a man who best combined in

early twentieth century. the highest quotients the qualities of physical strength, bravery, wealth, and leadership. Such men were ‘‘Devil Anse”’

THE FAMILY FEUD Hatfield and Judge James Hargis. In the One classic variety of negative Ameri- absence of an effective Syston of aw ane

can violence has been the family feud. orcer, t ese men unctioned as lamuly This) phenomenon ‘has generally been enforcers around whom the feuding

southern Appalachians, and, of the two _,. 18 New Mexico Territory the family and goat geographic locales of the family factional feud was bull into the politcal

teud, one surely has been the southern was probably the only North American mountains, Less generally recognized ate whore assassination became a tu Texas and the Southwest at the same time Ane Pe. Atica’ tactic, Tite most deadly of an

as murderous fouds wee drenching the ing Arizona from 1886 to 1892 This was OTe family ‘blood fa > oe virtually the Pleasant Valley War between the Granonexistent in this country before the pam and Tew Xsoury panies, a cont ict Civil War. It appeared on the scene quite b a vv cattlemen ate rf id 1. ksb ams dramatically in the decades following the being sheepmen ‘The bitter feud Was

and wo Period’ betwe i Ot wy vent fought, as described in the title of Zane

southern mountain feud in Kentucky, i earn tae venvctta, to the West Virginia, and Virginia. This is the remained from the two families “did th period that produced the Hatfield-McCoy feud q.4 © feud (1873-1888) of the Kentucky-West eud come to an end.

Virginia border,! the Martin-Tolliver (1884-1887) and Hargis-Cockrell (19021903) feuds of eastern Kentucky, and the /HELYNCHMOB ~

Allen family outburst at Hillsville in the Lynch law has been defined as “the

Virginia Blue Ridge in 1912.2 practice or custom by which persons are

The evidence is convincing that south- punished for real or alleged crimes withern mountain feuding was triggered by out due process of law.’’> The first organthe animosities generated by the Civil ized movement of lynch Jaw in the United War. The mountain region was a divided States occurred in the South Carolina

country where Confederate and Union back country in 1767-1769. It appeared

sympathizers fought in rival armies and again in the Virginia Piedmont during the slew each other in marauding guerrilla later years of the Revolutionary War near bands. After the war old hatreds did not the present city of Lynchburg. The Virdie out, but, fueled anew by political par- ginia movement was initiated by Colonel


Violence and Vigilantism in American History | Charles Lynch (from whom the lynch law VIOLENCE ARISING FROM RACIAL, ETHNIC, ,

gained its name) and was employed AND RELIGIOUS PREJUDICE

against Tory miscreants. Well into the Lvnch-mob activity by no means nineteenth lynch law meant y ODwhites Bey OY ple gscentury, / exhausts the violence involving

merely the. infliction of corporal punish; ;between . , against blacks. Racial conflict ment. f— usually thirty-nine or more lashes , . ; Caucasians and Negroes iswhips, one of ,the well laid on, ;with hickory withes, ; ; most . persistent themes in American violence, or any other readily available frontier extending far back into the eighteenth

instrument. By the middle of the nine- century 8 8

teenth century, lynch law had, howeve 0 With the end of slavery and its slave

come be synonymous, mainly, with ; .of Ws . .to patrols and black codes, the white men killing someone by illegal group action. 6 sys the South developed a special organizaBy the term “lynch-mob” is meant an ‘on for deali th the N The K comes together briefly to dopersistent its fatal work \ to geg ce of the last | , most institutions

‘zed Sporaneous, t b whichmov tion for Klan. dealing wi has e Negro: e the Ku Bporganizes, w Klux The Klan been one of

and breaksyears up. The regular violence. vig- ; . ; » -then hundred ofmore American

ilante di (ortematic ‘‘regulator’’) movements There hree Ku usurpation of the ere havehave beenb three AuKlux KluxKlans: Alans:ththe furctions of lavy and or der P first Klan of Reconstruction times, the sec-

_ , ond of the 1920s,and the third Klan of the

Lynch-mob violence (in contrast to Vigi- 1950s and 1960s. The first Ku Klux Klan

lante violence) was often resorted to in was organized to intimidate the Radical trans-Appalachian frontier areas before Republicans of the Reconstruction Era the Civil War, but it became even more and, by violence and threats, to force the common after the Civil War. In the post- freedman to accept the renewed rule of war period (down to World War I) lynch- southern whites.? The second Ku Klux

mob violence was frequently employed in Klan differed significantly from both its all sections of the country and against —_ predecessor and its successor. Although it : whites as well as blacks, but it became was founded in Atlanta in 1915, its grea-

preeminently the fate of southern test growth and strength actually took Negroes. From 1882 to 1903 a staggering place beyond the borders of the old Con-

total of 1,985 Negroes were killed by federacy. During the early 1920s it

southern lynch mobs. Supposedly the became a truly national organization. For

lynch-mob hanging (or, too often, the a time it enjoyed great strength in the ghastly fate of being burned alive) was Southwest, West, North, and East. The

saved for the Negro murderer or rapist, strongest state Klan was in Indiana, and but the statistics show that Negroes were such wholly unsouthern states as Oregon frequently lynched for lesser crimes or in and Colorado felt its vigor. The second Ku cases where there was no offense at all or Klux Klan surely belongs to the violent the mere suspicion of one. Lynch-mob history of America, but, unlike either the

violence became an integral part of the first or the third Klans, the Negro was post-Reconstruction system of white only a secondary target. Although denun-

supremacy.’ , ciation of Catholics and Jews ranked first Although predominant in the South, and second in the rhetoric of the second lynch-mob violence was far from being Klan, recent students of the movement restricted to that section. In the West the have shown that Klan violence — whip-

ephemeral ‘‘necktie party’? was often pings, torture, and murder — were

gathered for the summary disposal of directed less against Catholics, Jews, and thief, rapist, rustler, murderer, or all- Negroes than against ne’er-do-wells and around desperado. Frenzied mobs simi- the allegedly immoral of the very same larly worked their will in the North and background as the Klansmen: white, East where (as in the West) villainous Anglo-Saxon, and Protestant. The Klan white men were the usual victims.® thus attacked Americans of similar back-


Richard Maxwell Brown

ground and extraction who refused to ance of unskilled maritime workers,

conform to the Bible Belt morality that skilled artisans, and middle-class busiwas the deepest passion of the Klan move- ness and professional men in riotous disment of the 1920s.1° The Ku Klux Klan sent against toughening British colonial resurgence of the last ten years has been policy as exemplified by the Stamp Act largely restricted to the South; it is only and Townshend Acts. #4

too well known for acts of violence Economic and political conditions

against the civil rights movement and brought more urban turmoil in the post-

desegregation. revolutionary period of the 1780s and Paralleling the Ku Klux Klan have been 1790s, and by the mid-nineteenth cena host of other movements of racial, eth- tury, with rapid industrial and urban

nic, and religious malice. Before the Civil expansion, the cities of America found War the northeastern United States was themselves in the grips of a new era of frequently the scene of convent burnings violence. The pattern of the urban immiand anti-Catholic riots.1! This ‘‘Protestant grant slum as a matrix of poverty, vice, Crusade”’ eventually bred the Know-Noth- crime, and violence was set by Five Points

ing movement. Anti-Chinese agitation in lower Manhattan before the Civil War. that often burst into violence became a Ulcerating slums along the lines of Five familiar feature of California and the West Points and severe ethnic and religious in the nineteenth century. In 1891, eleven strife stemming from the confrontation Italian immigrants were the victims of a between burgeoning immigrant groups murderous mob in New Orleans.!? The and the native American element made fear and loathing of Catholics (especially the 1830s, 1840s, and 1850s a period of Irish and Italians) that often took a violent sustained urban rioting, particularly in form was organized in the nonviolent but the great cities of the Northeast. It may bigoted American Protective Association have been the era of the greatest urban (APA) of 1887.13 Labor clashes of the late violence that American has ever experinineteenth and early twentieth century enced. During this period at least thirtywere often in reality ethnic clashes with five major riots occurred in the four cities native old-stock Americans ranged on one of Baltimore, Philadelphia, New York, side, as owners, foremen, and skilled and Boston. Baltimore had twelve, Philaworkers, against growing numbers of uns- —_ delphia had eleven, New York had eight

killed immigrants — chiefly Jews, Slavs, and Boston had four. The violence also Italians, and others from Southern and extended into the growing cities of the

Eastern Europe. Midwest and the lower Mississippi Valley — Cincinnati had four major riots during

URBAN VIOLENCE | this period. Among the most important types were labor riots, election riots, Our cities have been in a state of more antiabolitionist riots, anti-Negro riots, or less continuous turmoil since the colo- anti-Catholic riots, and riots of various nial period. As early as the later part of the sorts involving the turbulent volunteer seventeenth century the beginnings of the firemen’s units. Except for the Civil War organized North End and South End mobs draft riots, the urban violence subsided in that dominated Boston in the eighteenth — the 1860s and 1870s until the year 1877

century had already formed. Maritime produced a tremendous nationwide

riots occurred in Boston during the mid- railroad strike that began along the Baltidle of the eighteenth century and were more and Ohio Railroad and spread to the general in the colonies in the 1760s. Lead- Far West. Rioting left Baltimore and great ing colonial cities of the revolutionary era stretches of Pittsburgh in smoking ruins.15 — Charleston, New York, Boston, and (The similarity between what befell BaltiNewport, Rhode Island — all had Liberty more and Pittsburgh in 1877 and the fate Boy troubles that resulted from an alli- of Los Angeles, Chicago, Newark, Detroit,


, Violence and Vigilantism in American History Washington, and other cities in 1965- mainly of sheriffs for the counties and

1968 is striking.) Many other cities suf- constables for the cities and towns. With

fered, but less seriously. , the tremendous expansion of population

The forces of law and order responded and territory in the nineteenth century,

strongly to the nineteenth-century urban the system took on much greater complexviolence. The modern urban police sys- ity. Added to the county sheriffs and local tem was created in reaction to the riots of constables were municipal police sys-

the 1830s, 1840s, and 1850s, and the tems, state police (including special and

National Guard system was developed in elite forces, such as the Rangers of Texas?!” response to the uprisings of 1877. To deal and Arizona), and federal marshals and

with urban tumult, vigilantism was also Treasury agents. The most important used frequently in the nineteenth century. development of the century was the The greatest of all American vigilante development of the modern urban police movements occurred in the newly settled system in the midcentury years from 1844

(by Americans) but thoroughly urban and to 1877. The new system was a direct up-to-date San Francisco of 1856; other response to the great urban riots of the nineteenth-century urban vigilante move- 1830s, 1840s, and 1850s. The antiquated

ments occurred in Los Angeles, New watch-and-ward system (daytime const-

Orleans, San Antonio, St. Louis, Cincin- ables and nighttime watchmen) was sim-

nati, Rochester, and Natchez. ply inadequate to cope with the

The era of the modern urban race riot large-scale rioting and increasing urban was inaugurated around the turn of our disorder. The reform in the police system present century. From 1900 to 1949 there came first in New York, Philadelphia, were thirty-three major interracial distur- Boston, and other cities which had acute bances in the United States. During this problems of criminal violence and riothalf century the peak period of violence ing.18 Thus the riot era of the 1830s-1850s

was from 1915 to 1919 when twenty-two produced the present urban police of the thirty-three disturbances occurred. system. | (The 1915-1919 period of racial disorder Scarcely less important than the develwas thus comparable to the period from opment of the urban police system was 1964 to the present.) Major riots occurred the creation of the National Guard to in Atlanta (1906), Springfield, Illinois replace the obsolete state-militia system (1908), East St. Louis (1917), Chicago that dated back to the eighteenth cen-

(1919), Harlem (1935 and 1943), and tury.The rapid development of the

Detroit (1943). With the exception of the National Guard system in the 1880s was Harlem riots, whites emerged as the main largely a response to the great urban labor aggressors in these riots, and most of the riots of 1877. The National Guard was casualties were Negroes.!®© Not until the established first and most rapidly in the summer of 1964 with the Harlem and leading industrial states of the North that Rochester riots and Los Angeles’s Watts were highly vulnerable to labor unrest: riots of 1965 did the pattern decisively Massachusetts, Connecticut, New York, reverse itself to the present mode of Negro Pennsylvania, Ohio, and Illinois. By 1892, initiative. Since 1964 black rioting has the system was complete throughout the concentrated on property destruction nation.!9 Its officers were primarily busi-

rather than on the taking of white lives; ness and professional men, and the

this is a new pattern, although it was fore- Guard sometimes received large subsishadowed in the Harlem riots of 1935 and dies from wealthy industrialists. National

1943. | , | Guard contingents were often called out . og2 . . to suppress labor violence from the latePositive Violence: The Police nineteenth century down to the time of The law-enforcement system in colo- World War II. nial America was quite simple, consisting In the later half of the nineteenth century there also grew up a sort of parapo-


Richard Maxwell Brown | lice system with the founding of region. It was a problem that occurred

numerous private detective agencies again and again beyond the Appalachian (beginning with the famed Pinkerton Mountains. It stimulated the formation of National Detective Agency)?° and the bur- hundreds of frontier vigilante movegeoning of thousands of local anti-horse- ments.?4 On the frontier the normal foun-

thief associations or detecting societies dations of a stable, orderly society —

which often were authorized by state laws churches, schools, cohesive community and invested with limited law-enforce- life — were either absent or present only ment powers.2! After the Civil War, indus- in rough, immature forms. The regular trial corporations frequently set up their legal system of law enforcement often own police forces. The most notable of proved to be woefully inadequate for the these were the private coal and iron police needs of the settlers.

which the state of Pennsylvania autho- Fundamentally, the pioneers took the

rized to deal with labor unrest in mines law into their own hands for the purpose and mills.22 It was during the nineteenth of establishing order and stability in century as well that the science of crime newly settled areas. In the older settled

detection was inaugurated. areas person and property were secure,

Undue violence in the course of enforc- but the move to the frontier meant that it ing the law has long been a matter of con- was necessary to start all over. Upright

cern. In an earlier generation the public and ambitious frontiersmen wished to

worried about the employment of the reestablish the values of a property-

“third degree’ to obtain criminal confes- holder’s society. The hurtful presence of sions. In our own time the concern is with outlaws and marginal elements in a con-

‘‘police brutality,’’ especially that text of weak and ineffectual law enforce-

directed against Negroes. ment created the specter, and often the

, fact, of social chaos. The solution hit

The American Vigilante Tradition upon was vigilantism. A vigilante

roundup of ne’er-do-wells and outlaws The vigilante tradition, in the classic followed by their flogging, expulsion, or

sense, refers to organized, extralegal killing not only solved the problem of

movements whose members take the law disorder but had crucial symbolic value

into their own hands. The first vigilante as well. Vigilante action was a clear movement in American history occurred warning to disorderly inhabitants that in 1767. From then until about 1900, vigi- the newness of settlement would provide

lante activity was an almost constant fac- no opportunity for eroding the estabtor in American life. Far from being a lished values of civilization. Vigilantism phenomenon only of the far-western fron- was a violent reaffirmation of the deeply tier, there was much vigilantism in the cherished values of life and property.

eastern half of the United States. Because the main thrust of vigilantism

Although the tirst vigilante movement was to reestablish in each newly settled

occurred in Piedmont, South Carolina in area the conservative values of life, prop1767-1769, most of the Atlantic Seaboard erty, law, and order, vigilante movements

states were without significant vigilante were usually led by the frontier elite. activity. But beyond the Appalachians This was true of the greatest American there were few states that did not have — vigilante movement — the San Francisco

vigilante movements. There may have Vigilance Committee of 1856 — which

been as many as five hundred of them, but was dominated by the leading merchants

at the present only 326 have been of the city. Again and again the most

documented.?3 eminent local community leaders headed Vigilantism arose as a response to a typ- vigilante movements.

ical American problem: the absence of ‘Vigilance committee’’ or ‘‘committee effective law and order in a frontier of vigilance’’ were the common names of


Violence and Vigilantism in American History

the organization, but originally — and far ized into gangs, stealing horses in one into the nineteenth century — vigilantes area and disposing of them hundreds of were known by the now obsolete term of miles away — preferably across state “regulators.’’ Variant names for vigilante lines. For obvious reasons, counterfeiting

groups were “‘slickers,’’ ‘“‘stranglers,’’ operations were best carried on in the “committees of safety,’’ and, in central same way, and it was simple to combine Texas, simply ‘“‘mobs.”’ Here ‘‘vigilante’”’ the two occupations. The link between ©

will be used as a generic term to cover all counterfeiting and horse theft had an phases of the general phenomenon of effect on the geographical distribution of vigilantism. The duration of vigilante regulator and vigilante movements. The movements varied greatly, but move- latter tended to be found in wilderness ments which lasted as long as a year areas, Close to state lines, or near Indian were considered to be long lived. More borders — all were places favored by the commonly they finished their business in horse thieves and counterfeiters.

a period of months or weeks. Vigilante From the 1790s well into the nine-

movements (as distinguished from ephe- teenth century, vigilante activity was meral lynch mobs) are thus identifiable generally local in Kentucky, Tennessee, by the two main characteristics of (1) reg- Indiana, and Illinois. Thereafter there ular (though illegal) organization and (2) were four major waves of vigilantism existence for a definite (though possibly occurring in the early 1830s, the early

short) period of time. 1840s, the late 1850s, and the late 1860s. The first wave was from 1830 to 1835, EASTERN VICILANTISM and it took place mainly in the lower southern states of Alabama and Missis-

Geographically, American vigilantism sippi where Captain Slick’s bands

divides into eastern and western halves. operated against horse thieves and counEastern and western vigilantism are dis- terfeiters, and vigilantes attacked gamtinct in regard to chronology. Eastern blers and the alleged Murrell conspiracy. vigilantism mainly came to an end in the The second wave took place in the early 1860s while western vigilantism began in 1840s and included the Bellevue vigi-

the 1850s. Eastern vigilantism was lante war in Iowa, the east Texas regulalargely a feature of the first half of the tor-moderator conflict, the northern and nineteenth century and western vigilant- southern Illinois regulators, and the ism of the second half. Eastern vigilant- Slicker War of the Missouri Ozarks. The

ism fell between the Appalachian vigilante wave of the early 1840s may

Mountains?> and the 96th meridian, have been a response to a shift in outlaw while western vigilantism stretched from elements (caused by the 1830-1835 vigithe 96th meridian to the Pacific.2© The lante campaign) from the lower Missis-

Mississippi Valley, Great Lakes, and Gulf sippi River region of Alabama, coast regions furnished the main scenes Mississippi, Arkansas, and Louisiana to of eastern vigilantism; western vigilant- the upper Mississippi area (northern IIli-

ism took in the arid and semiarid Great nois, eastern Iowa, and the Missouri Plains and the Rocky Mountains and the Ozarks) and to the trans-Mississippi Pacific coast. Eastern vigilantism was a Southwest (east Texas.) response, chiefly, to frontier horse The third peak of vigilantism was from thieves, counterfeiters, and ne’er-do-well 1857 to 1859 and featured the Iron Hills white people. West of the 96th meridian and other vigilante movements of Iowa,

the vigilantes were concerned largely the northern Indiana regulators, the San with disorder in mining camps, cattle Antonio and New Orleans vigilantes, and

towns, and on the open range.?7 the comités de vigilance of southwest

, Counterfeiting and horse stealing were Louisiana. The movements of the late

linked. Horse thieves commonly organ- 1850s may have been inspired by the San


Richard Maxwell Brown | Francisco Vigilance Committee of 1856,78 American English)°° and the 1884 move-

which was well publicized throughout ment in northern and eastern Montana, the nation. The fourth and final wave of which Granville Stuart led against horse vigilantism occurred in the immediate and cattle thieves in a human roundup post—Civil War period (1866-1871) with that claimed thirty-five victims and was major movements erupting in Missouri, the bloodiest of all American vigilante Kentucky, Indiana, and Florida as a reac- movements. In addition, Montana, from

tion to postwar lawlessness. the 1860s to the 1880s, was in the grips of a territory-wide vigilante movement WESTERN VIGILANTISM | with headquarters apparently in the terri31 The natural resources of the West . Oe ad Atte ‘two vigilante move-

, . — an

influenced the geography of frontier dis- ments — more than any other state. order. Repeated strikes of precious and There were two important ante-bellum Rockies set off mining rushes that Tovements Seebby County in ea! Texas

rong mings and others jn rw nes! 967), ut the monty (at least ent such places the law was often absent or owas > the red in vigience-tomn Tf tral ineffectual, with vigilantism the result. 5 Bea to 1890. There were H ozens and ihe other great natural veeland or tne dozens of vigilante movements in most of west as the gssy rangeland ofthe th other western slates: only Oregon and open-range system afforded an irresist- activity: Colored signicant vighante ible attraction to cattle and horse thieves are headed by the Denver vigilantes of who, in turn, invited vigilante retaliation. 1859-1861 New Mexico had thonea potent

Beginning with the first significant vigilante movements in Albuquerque outbreak of vigilantism in the gold-rush (1871-1882), Las Vegas (1880-1882), and

metropolis of San Francisco in 1849 and Socorro (1880-1884), 22 The Butler Seog thaws for ity three years tlante County vigilantes who enlisted almost the West.victims No vigilante eight hundred me mbersnotable and claimed eight formed the most of movements in American history were Kansas’s nineteen movements.33 Wyompetter organized or more powerful than ing Committees vigilantism began with e San Francisco Vigilance ; . .two lethal of 1851 and 1856. The San Francisco movements in the wild railroad boom

, ; towns of Cheyenne andonLaramie (1868— movements had an immense impact d lin th vigil American vigilantism in general and 1869) and came to a climax with vigilantupon California vigilantism in particular. nat] S most famous failure, ne

During the 1850s, the San Francisco com- cattlemen’s regulator movement which

; . precipitated the Johnson County War of

mittees were copied all over the state in 1862.34 , the new mining towns (Sacramento, Jack-

son) and in the old Spanish cities (Los For purposes of analysis, the 116 eastAngeles, Monterey). Of California’s forty- ern vigilante movements and the 210

three movements, twenty-seven occurred western vigilante movements have been

in the 1850s.?9 | | | divided into the categories of large — a Montana was a most, vigi- range movement or one particular sig. ante state. It had two ofsignificant the most impornificance; medium — of a movement o

tant movements in the history of the medium size or significance; and small ,

institution: the influential Bannack and — a small movement or one for which Virginia City movement of 1863-1865 there is insufficient information to other(which gave the term ‘‘vigilante’’ to wise categorize (see table No. 16.1).


otal ; , Victims . os .

Violence and Vigilantism in American History

Table 16.1. Eastern and Western Vigilante There were 81 large movements; they

Movements extended, chronologically, from 1767 to Total 1897. Fifty-nine of the 81 large move-

, Number ments were clustered in the period from

‘ f 1850 to 1889; 49 occurred in the midcen- _

State Movements oO tury decades from 1850 to 1879 when the

LargeMediumSmall Total Killed nation was wracked by Civil War vioaD lence in the Eastsettlement and the tensions of Eastern rapid frontier in the West.

Alabama 1 5 0 6 0 About three-fifths (190) of all vigilante Arkansas 1 0 3 4 4 movements took place after 1860, but Florida 4 1 1 6 7 here again it must be noted that the lack Georgia 2 1 1 4 6 of specific information on many KenIllinois 4 4 2 10 30 tucky, Tennessee, Indiana and _ Illinois Indiana 3 2 6 11 15 movements leads to an understatement of Iowa 3 13 9 25 27 pre-1860 vigilante movements; 180 of the Kentucky 3 4 4 11 10 190 movements were concentrated in the Louisiana 4 0 3 7 35 three decades from 1861 to 1890 (see

_ Minnesota 0 0 2 2 1 table 16.2). By the same token, about fiveMississippi 4 0 1 5 21 sevenths (511) of all the killed victims of Missouri 4 1 7 12 21 vigilantism perished after 1860 (see table

Ohio 1 2 2 5 0 16.3). South © Behind the statistics lies the impact of

Carolina 1 0 0 1 16 vigilantism on the American consciousTennessee 1 0 3 4 9 ness. The original South Carolina regula-

Virginia 0 2 oO 2 0 tor movement of 1767-1769 with its Wisconsin 0 0 1 1 0 success in achieving order in the back Subtotal 36. 35 4445 «2116 «202 country recommended itself to the pioOR neers who crossed the Appalachians and Western , : populated the Mississippi Valley. The

Arizona 0 3 3 6 11 regulator method was applauded as a California 10 23 10 43 101 tool for establishing frontier social stabilColorado 3 4 9 16 23 ity until, in the 1840s, three anarchic Idaho | 4 1 0 5 35 movements in southern Illinois, the MisKansas 1 2 65 13 19 #418 souri Ozarks, and east Texas gave the Montana 4 2 0 6 101 institution an increasingly bad name. Nebraska 2 8 6 16 20 Soon after, in 1851 and 1856, the resNevada 1 2 10 13 7 trained but deadly San Francisco Vigi-

South _ a Texas 9 15 28 52 140 I North Dakota ot 0 1 0 Table 16.2. Number of Movements

New Mexico 3 3 5 11 17 lance Committees restored to vigilantism

Oklahoma 1. 1 7 4 7 Arranged by Periods Dakota 2 1 1 4 10 Period Number of Movements

Utah 0 0 12 11 3061767-1849 65 Washington 11 1850-1860 57 Wyoming 3 ; ; 7 44 1861-1890 180 Subtotal 45 72 93 210 527 Overlapped 2 periods 14 Total 81 107 138 326 729 Total , 326

tn a 1891-110 10


Richard Maxwell Brown , Table 16.3. Number of Known Victims Killed spread the fame of the Montana move-

OT erof ment but was a veritable textbook on the Period Victims Killed vigilante method. Significant vigilante activity did not

1760-1769 16 always take the shape of a formally 1770-1779 0 organized movement with officers and , 1780-1789 0 trials. By the later half of the nineteenth 1790-1799 0 century the ritual of organizing a vigi-

1800-1809 0 lante movement had been carried out so 1810-1819 0 many times on so many frontiers that to 1820-1829 3 many settlers it often seemed an unneces1830-1839 5 sary delay to swift lynch-law justice. A 1840-1849 64 local consensus in favor of immediate 1850-1859 119 vigilante action without any of the tradi1860-1869 179 tional formalities produced instant vigi1970-1879 125 lantism. Instant vigilantism was more 1880-1889 107 prevalent in the West than in the East. 1890-1899 25 Many of the “‘one-shot”’ vigilante actions

1900-1909 1 in western states were the result of instant vigilantism, which existed side

Subtotal 644 by side with the more formally organized variety. Instant vigilantism meant that

Overlapped 2 or the public mind had long since been more periods 342 made receptive to vigilante action when Year or decade general conditions or a particular crime unknown 1 seemed to warrant it. The ritual process of organization had been gone through so Total 729 many times, the rationale of vigilantism was so well understood, and the course , Killed of action so obvious on the basis of past 44 859-1860s 10 precedents that the settlers readily pro-

, 1860—-1870s 10 ceeded to vigilantism the lynching. 1860—1890s 9 Instant seems to have 1870-1880s 30 occurred in all western states but Oregon 1880—1890s 25 and Utah. It was particularly effective in California. In the Golden State, regular

Total 84 vigilante action took 101 lives, but the toll of instant vigilantism from 1851 to

oo 1878 was almost as great, amounting to

the enormous prestige which it retained 79.35 On a lesser scale the same thing through the remainder of the century. occurred in other western states, where Countless vigilante movements from time and again precipitate lynchings coast to coast modeled themselves after were justified by the vigilante tradition. the San Francisco committees. One of these was the vigilante movement of the Community Reconstruction and gold camps of Bannack and Virginia City, Vigilantism Montana (1863—1865), which in turn had

something of the same effect on Ameri- New settlers ordinarily desire new can attitudes as the earlier South Caro- opportunities but not social innovation.

lina and San Francisco movements. Their main desire is to re-create the life _

Thomas Dimsdale’s classic book, The they left behind them by reconstructing Vigilantes of Montana (1866), not only the communities from which they came.


Violence and Vigilantism in American History

This is no great problem for communities ne’er-do-well, shiftless poor whites. They

that migrate together, of which there constituted a true lower people; they

have been many examples. The Pilgrim were viewed with contempt and loathing settlers of Plymouth, Massachusetts, and by the members of the upper and middle the Mormon migrants to Great Salt Lake, levels who could not abide their slovenly Utah, are notable cases of ‘‘colonized”’ way of life, their spiritless lack of ambi-

new communities. | tion, their often immoral conduct, and More common have been the “‘cumula- _ their disorganized family life.3*

tive” communities of inhabitants thrown The lower people were not outlaws but

together helter-skelter by the migration often tended to lawlessness and were

process.*° The migrants to San Francisco, identified more with the outlaw element California, in 1849 and after furnish an that with the law-abiding members of the example of the cumulative new commu- =community. The outlaw element lived on nity. The San Franciscans came from all the fringes of the community. In some over and were an immensely diverse lot. cases they sprang from the lower people, The only thing that united them initially but then were often men of good back-

was their common desire to profit form ground who chose the outlaw life or

the California gold rush. drifted into it.. They were alienated from Basic to the reconstruction of the com- the values of the community, although munity is the reestablishment of the old some occasionally joined respectable community structure and its values. To community life as reformed men.

the extent that both are achieved, an A community has behavioral bounda-

orderly and stable new community life ries just as it has geographic boundaries. will be achieved. Although American Just as a new community establishes its frontiersmen of the nineteenth century geographic boundaries it must also estabcame to their new localities from all lish its behavioral boundaries. The latter points of the compass and were usually represent the positive, mutual values of unknown to one another, most came from the community.3? The values which supessentially similar communities. The typ- ported the three-level community and the

ical American community of the eight- basis upon which it rested were the

eenth and nineteenth centuries possessed linked ideals of respect for life and prop-

a social structure of three levels.” erty. The American community of the (1) The upper level consisted of the eighteenth and nineteenth centuries was leading men and their families. Included primarily a property-holder’s commu-

were the well-to-do businessmen, the nity, and property was viewed as the

most eminent professional men, the afflu- very basis of life itself.

ent farmers and planters, and the promi- The vigilante leaders were drawn from nent men of whatever occupation. This the upper level of the community. The was the local elite, and in it were concen- middle level supplied the rank-and-file.

trated the community leaders. The lower people and outlaws repre-

(2) The middle level included the men sented the main threat to the reconstrucof average means: farmers, craftsmen, tion of the community and were the main tradesmen, and the less eminent lawyers, targets of the vigilantes.

teachers, and other professionals. The In the new cumulative communities of industrious, honest middle level formed frontier America, the lower people and

the core of the community. In this sector outlaws confronted the representatives of

resided the American yeoman. the middle and upper levels. The outlaws

(3) The lower level included the honest and lower people wished to burst their poor and also those who were either mar- lower-level bounds and ‘‘take over’ the ginal to or alientated from the remainder new communities. In sociological terms of the community. In but not really of the the outlaws and lower people constituted community (and spurned by it) were the a “contraculture.’4° They rejected the

184 |

Richard Maxwell Brown

respectable values of life and property and cut away the top of the skull, in and wished to upset the social structure order to remove the brain. The skin was in which the upper- and middle-level tanned and made into a medical instrumen were dominant. The lack of social ment bag, razor strops, a pair of lady’s boundaries in the new settlements was shoes, and a tobacco pouch. The shoes their opportunity. On the other hand, the were displayed in the Rawlins National men of upper-level background or aspira- Bank for years,” and in effect, constituted tions were determined to reestablish the an upper-level trophy in honor of the community structure in which they had community values of life and property been dominant. In this they had the sup- held by such men as Dr. Osborne.*4 port of the middle-level inhabitants, and

with it they mounted vigilante cam- . .

lower people.*! ,

paigns to quell the insurgent outlaws and Vigilante Characteristics

James Hall described the challenge Vigilante movements varied in size which outlaws and lower people pre- from the smallest of twelve to fifteen sented in the early years of midwestern members (the Pierre, South Dakota, vigi-

settlement: - lance committee) to the six to eight thousand who belonged to the San Francisco

We had whole settlements of counterfeit- © Vigilance Committee of 1865.

ers, or horse thieves, with their sympath- The characteristic vigilante movement isers — where rogues could change names, was organized in command or military or pass from house to house, so skillfully as fashion and usually had a constitution, to elude detection — and where if detected, articles, or a manifesto to which the the whole population were ready to rise to members would subscribe. Outlaws or the rescue. There were other settlements of | other alleged malefactors taken up by sturdy honest fellows, the regular back- vigilantes were given formal (though ille-

woodsmen in which rogues were not gal) trials in which the accused had

tolerated. There was therefore a continual counsel or at least an opportunity to struggle between these parties — the honest defend himself. An example of a vigipeople trying to expel the others by the ter- lante trial is found in the northern IIlirors of the law, and when that mode failed, nois regulator movement of 1841. Two forming regulating companies, and driving accused horse thieves and murderers

them out by force.*? were tried by 120 regulators in the pre-

sence of a crowd of 500 or more. A lead-

The loathing of upper-level men for the ing regulator served as judge. The

lower element — the contraculture — of | defendants were given a chance to chalthe frontier was stated with feeling by lenge objectionable men among the regu-

Thomas Dimsdale, who cried that ‘for lators, and, as a result, the number of the low, brutal, cruel, lazy, ignorant, regulators taking part in the trial was cut

insolent, sensual and blasphemous mis- _ by nine men. Two lawyers were provided creants that infest the frontier we enter- | — one to represent the accused and one

tain but one sentiment — aversion — _ to represent the ‘people.’ Witnesses

deep, strong, and unchangeable,’’** At = were sworn, an arraignment was made, times the deep aversion expressed itself and the trial proceeded. In summation, in gruesome ways. Such an incident the prosecuting attorney urged immedioccurred in Rawlins, Wyoming, in 1881 ate execution of the prisoners. The crowd where Dr. John E. Osborne (a future gov- = voted unanimously for the fatal sentence, ernor of Wyoming) attended the hanging _and, after an hour allotted to the two men

of the brutal western outlaw, Big Nose for prayer, they were put to death. The

George Parratt (or Paratti). The next day § accused were almost never acquitted, but Dr. Osborne ‘‘skinned ‘Big Nose’ George _ the vigilantes’ attention to the spirit of


Violence and Vigilantism in American History

law and order caused them to provide, by vice and a desire to keep it down lest, as

their lights, a fair but speedy trial. substantial taxpayers, their own circum-

The punishments of whipping and stances suffer. No better resolution of the expulsion were common in the early conflicting goals of public order and per-

decades of vigilantism, but, as time sonal wealth could be found than vigi-

passed, killing — usually by means of lantism, which provided a maximum of hanging — became the customary pun- the former at minimum cost to the ambiishment. Through 1849 there are only 88 tious and well-to-do.

documented fatal victims of vigilance The typical vigilante leaders were

action (see table 16.3). In the next decade ambitious young men from the old set-

105 persons were killed by vigilantes, tled areas of the East. They wished to

and it was at about this time — the 1850s establish themselves in the upper level of

—that the transition in the meaning of the new community, a status they had the term ‘lynching’ from whipping to held or aspired to in the place of their

killing was occurred. The killing charac- origin. Two notable but representative

ter of vigilantism, made firm in the examples of aggressive young vigilante 1850s, was accentuated during the leaders were William Tell Coleman and remainder of the century: from 1860 to Wilbur Fisk Sanders. 1909 vigilantes took at least 511 lives | | Coleman was head of the San Francis-

(see table 16.3). co Vigilance Committee of 1856 when he

The tendency among the 141 vigilante was thirty-two years old. His father had © movements that were taking lives was to been a Kentucky lawyer and legislator stop after claiming four or fewer victims. but died a bankrupt when the son was Thus 98 movements (or 70 percent of the only nine years old. The future vigilante,

141 movements) inflicted from one to deprived of educational opportunity, four deaths. Only 17 of the 141 move- spent his early years moving restlessly ments (12 percent) took more than 10 about the Midwest (Illinois, Missouri, lives. The most lethal movement was that and Wisconsin) in a fruitless quest to in Montana in 1884 led by Granville regain the upper-level status of his father. Stuart against the horse and cattle thieves Arriving overland in California in 1849 at

of the eastern and northern part of the the age of twenty-five, Coleman territory; its toll was 35 persons.*5 embarked on a career which, by 1856,

Vigilante leaders wished to reestablish found him one of San Francisco’s most the three-level community structure (in successful importers.*® His participation which they would be dominant) and the as a vigilante leader was, in effect, an

respect for life and property that sup- action to cement his position in the

ported it. Specifically, they wished to upper level of the new city and to consolcheck disorder and crime, but in some idate the three-level system there.

situations the threat of the latter was Wilbur Fisk Sanders was the coura-

mild. In such cases their desire to use geous and incisive prosecuting attorney vigilantism underscored their basic of the vigilantes at Virginia City, Monthough implicit goals of implanting com- tana, in 1864. Like Coleman, Sanders

munity structure and values. came from an upper-level background

All this they wished to achieve as but had not yet made firm his own posi-

cheaply as possible. They were the typi- tion in that status. He was twenty-nine cal frontier entrepreneurs. Their enter- years old when he served as a vigilante prise in commerce or land was often and had not long before accompanied his speculative, and they frequently skated uncle, Sidney Edgerton (who had been on financial thin ice. The delicate bal- appointed territorial chief justice by Linance of their own personal finances coln), from Ohio to Montana. Sanders’s could be easily upset; hence, they had a vigilante service did much to establish lively awareness of the cost of public ser- the three-level system in chaotic early

186 |

Richard Maxwell Brown

Montana, and it was the beginning of one Lack of jails (in the early days) or their

of the most spectacular careers in the ter- flimsy construction made it nearly

ritory. Sanders went on to become one of impossible to prevent those in custody the leading lawyers and top Republican from escaping. The system presented politicians in Montana. He founded the numerous opportunities for manipulation

Montana Bar Association and in 1889 by outlaws who could often command was elected one of Montana’s first two some measure of local support. When-

United States senators. ever possible, outlaws would obtain false witnesses in their behalf, pack juries,

The Problem of Frontier Law bribe officials, and, in extreme cases,

Enforcement and Justice intimidate the entire system: judges, juries and law-enforcement officials. In frontier areas, law and order were Such deficiencies in the judicial system

often tenuous. Outlaws — singly or in were the source of repeated complaints |

gangs — headed for the new areas and by frontiersmen. They made the familiar took every advantage they could of the point that the American system of adminsocial disorganization stemming from the istering justice favored the accused rather

newness of settlement and the weakness than society. The guilty, they charged, of the traditional institutions of state, utilized every loophole for the evasion of

society, and church. . punishment. Compounding the problem Law enforcement was frequently inade- was the genuinely heavy financial bur-

quate. Throughout most of the nine- den involved in maintaining an adequate teenth century (and not just on the ‘“nolice establishment” and judicial sys-

frontier) it was pinned down to the tem in a sparsely and economically

immediate vicinity of county seat, town, underdeveloped frontier area.*8 or township.*7 Localities lacked the eco- For many a frontiersman, vigilantism nomic resources to support constables, was the solution to these problems. W.N. policemen, and sheriffs in pursuit after Byers, an old Denver, Colorado, vigilante lawbreakers. A really large expenditure of 1860 reminisced: “We never hanged

of funds for the pursuit, capture, jailing, on circumstantial evidence. I have easily bankrupt the typical frontier I don’t believe one of them was ever

trial, and conviction of culprits could known a great many such executions, but

onal or ‘own. he hand; f unjust. But when they were proved cinore as aleg the handicap of poor ult, they wore always hanged. Ther d sh ; ; Ff d flexibl was no getting out it. No, there were no anc’ olners was only as Tapid and exmic appeals in those days; no writs of errors; as their horses provided. A fugitive, hav- no attorneys’ fees: no pardon in six

ing gained any sort of lead, was difficult months. Punishment was swift, sure and

to catch. The development of the railroad certain 49 , was a help but was not without its disad- ,

vantages. The officer was bound to the ‘otlanti fixed route of the railroad. There were The Ideology of Vigilantism

large gaps between the railroad lines — Most vital to the philosophy of vigi- — gaps into which the fugitives unerringly lantism was the democratic idea of popu-

rode. In the hinterland stretches lar sovereignty. Popular sovereignty was

unserved by the railroads, the authorities much more than a slogan used by the were forced to make their way over poor ambitious Stephen A. Douglas as a gim-

roads and disappearing trails. mick to solve the thorny problem of slavLinked with inadequate law enforce- ery in the territories; it represented a

ment was an uneven judicial system. belief shared by Americans of whatever Through fear, friendliness, or corruption, political persuasion. The regulators of juries often failed to convict the criminal. the predominantly Republican countries

. | 187

Violence and Vigilantism in American History

of La Grange and Noble in northern Indi- merited, but a positive gain to the

ana saw no inconsistency (as they pre- county, saving it at least five or six thoupared for a lynch-law drive) in stating as sand dollars.’’53 the first of their resolutions on January 9, 1858: ‘‘Whereas, We are believers in the The Two Models of Vigilantism

doctrine of popular sovereignty; that the Two models of vigilante movements people of this country are the real sover- developed. One was the “good” or eigns, and that whenever the laws, made socially constructive model in which the by those to whom they have delegated vigilante movement dealt with a problem their authority, are found inadequate to of disorder straightforwardly and then their protection, it is the right of the Peo- disbanded. The result was an increase in

ple to take the protection of their Prop- the social stability of the locality; the erty into their own hands, and deal with movement was, thus, socially constructhese villains according to their just tive. The other model was the ‘‘bad”’ or

deserts... socially destructive one in which a vigiThe same idea was put a bit seeuaah pith- lante movement encountered such strong

ily in 1902 when the following jingle was opposition that the result was an anar-

found pinned to the body of a man chic vigilante war. Some movements hanged by the vigilantes of Casper, behaved according to the ideal theory of

Wyoming: — vigilantism while others did not. Some were socially successful; others were not.

Process of law isa little slow |

| So this is the road you'll have to go. THE SOCIALLY CONSTRUCTIVE MODEL

Murderers and thieves, Beware! The socially constructive movement

PEOPLE'S VERDICT.°* occurred where the vigilantes represented a genuine community consensus.

Although vigilantism rested on a Here a decided majority of the people bedrock democratic premise, the vigi- either participated in the movement or lante operation in practice was often not approved of it. Vigilantism of this sort

democratic. Ordinary men formed the simply mobilized the community and rank and file of the vigilante organiza- overwhelmed the unruly outlaws and tion, but, usually, its direction was firmly lower people. The community was left in in the hands of the local elite. Vigilante a more orderly and stable condition, and leaders were often the local large taxpay- the social functions of vigilantism were

ers. They had the customary desire to served: the problem of community order whittle down the tax rate and keep local was solved by the consolidation of the expenses in check. From this point of three-level social structure and the solidiview there was a persuasive economic fication of the supporting community

rationale, for vigilante justice was values. cheaper, as well as quicker and more cer- Although the methods used were often

tain, than regular justice. This was a harsh and arbitrary, most vigilante move-

theme that the vigilantes sounded time |= ments — large and small — conformed to

and again. the socially constructive model. One of

In 1858, northern Indiana regulators the best examples was the northern Illiparaded under a banner that said simply nois regulator movement of 1841. The “No expense to the county.’’52 A Denver northern Illinois movement confronted a

Tribune reporter probed opinion in classic threat to community order: an

Golden, Colorado, in 1879 after a recent agglomeration of outlaw gangs was nearvigilante lynching and found that ‘“‘on ing control of the area. With the regular every side the popular verdict seemed to government virtually powerless, the be that the hanging was not only well respectable leading men (the community

188 Richard Maxwell Brown >

upper level) took the law into their own of the successful frontier vigilante movehands with the help of the middle-level ment. It was organized in a rational way.

farmers. Mass participation of respectable men Since 1835 the situation in the Rock was the rule, but the movement was Valley of northern Illinois had gone from clearly dominated by the social and eco-

bad to worse. Several gangs of horse nomic elite of the area. The regulators

thieves and counterfeiters found the Rock were implacable in their war on the outRiver country a convenient corridor for laws and unrelenting in the face of oppo-

illicit operations in Wisconsin, Illinois, sition. Although the Rockford Star Iowa, and Missouri. The Driscoll and opposed the regulators, no antiregulator

Brodie gangs had made Ogle and De Kalb coalition developed. The outlaw gangs Counties virtual fiefs. The Oliver Gang were isolated and broken up. The vigi-

dominated Winnebago County. The lante leaders desired the assurance of

Bliss-Dewey—West ring waxed strong in their position at the upper level of their

Lee County, while the Birch gang of | communities but were not power mad.

horse thieves ranged in all quarters. By | With the outlaw threat put down, peace 1840 the desperadoes were numerous and order reigned.

enough to control elections in Ogle

County and similarly threaten other THE SOCIALLY DESTRUCTIVE MODEL

counties. One summer the outlaws even In the socially destructive model, went so far as to burn down the newly anarchy was the result of the vigilante constructed courthouse at Oregon, movement. Because there was no com-

Hlinois. munity consensus behind the vigilante Finally, in April 1841, fifteen ‘‘repre- movement, strong opposition appeared, sentative men” of Ogle County formed and civil conflict flared. In the socially the first regulator company. In no time at constructive model, opposition to the all the counties were dotted with regula- vigilantes was narrowly restricted to out-

tor squads, but the most vigorous were laws and lower people who could gain those of Ogle. The regulators embodied no support from the remainder of the the social, economic, and political pres- community. For the vigilantes to be stytige of Ogle County: John Phelps was the mied a broad antivigilante coalition was county’s oldest and wealthiest settler and necessary. The formation of an antivigi-

the founder of the county seat, Oregon. lante coalition almost inevitably conPeter Smith combined a bank presidency demned the community to a chaotic with the ownership of 1,600 acres of internecine struggle between the vigilanland. The farmers who made up the bulk tes and their opponents.

of the movement were substantial prop- Examples of the socially destructive erty holders; they had taken up govern- model are not as numerous as those for ment land claims ranging from 240 to the constructive model, but they tend to

600 acres. These solid citizens brooked be much more violent. no opposition. They burned the Rockford As the career of the socially destructive Star to the ground soon after it published | model proceeded, the moral standing of an anti-regulator editorial. But, on the the vigilantes and the opposing coalition whole, the local elite kept the movement 7 tended to be increasingly compromised.

under control. Having accomplished As the struggle became more violent, the their purpose in a campaign of whipping, respectable men of the antivigilante hanging, and firing squads, the regulator coalition put a higher premium on the companies disbanded. Socially they left violent tendencies of the outlaw element

the Rock Valley in a better state than they © with which they otherwise had nothing found it. in common. So too, did the original vigi-

The northern Illinois regulator move- lantes themselves recruit criminals as ment exhibited the major characteristics mercenaries. With the community de-

, 189

Violence and Vigilantism in American History

scending bloodily into chaos, wise and The original reasons for the founding prudent men left if they could. The of the regulator movement were all but opposing movements tended to fall more forgotten. The war became a thing in and more into the control of the worst itself, a complex of personal and family

and most extreme of their adherents. feuds that was consuming the area in

About this time the desperate neutral res- blood lust. Several attempts to restore idents would beseech state authorities for peace failed. Complete anarchy prevailed

the intervention of the militia, and the in 1844 when an all-out battle between ‘war’? would subside fitfully in the pre- two armies of several hundred men each

sence of the state troops. was only forestalled by the dramatic

| The regulator-moderator war of east intervention of Sam Houston and the

Texas 1840-1844 was representative of militia. After four years, eighteen men

the degenerate, socially destructive vigi- had been killed and many more

lante situation. The scene was the red- wounded. A stream in the vicinity was land and piney-wood country of east called ‘‘Widow’s Creek.” The killing of Texas in the days of the Lone Star Repub- so many leaders and the exhaustion of lic. The center of the conflict was in the survivors probably explain why the Shelby County. Fronting on the Sabine war was not revived after Sam Houston River, where it formed the boundary and the militia withdrew. Ex-regulators between Louisiana and Texas, Shelby and ex-moderators warily fought side by County lay in an old border area that had side in separate companies in the Mexinever been known for peace and calm. In can War, but for fifty years East Texans 1840 the regulator movement arose as a were reluctant to discuss the episode lest quite honest and straightforward attack old enmities be rekindled. on a ring of corrupt county officials who

specialized in fraudulent land transac- Vigilantism as a Parallel tions. The rise of the regulators was prob- Structure ably inevitable in any case, for the county

had long suffered under a plague of Vigilantism characteristically appeared counter-feiting, horse thievery, Negro in two types of situations: (1) where the stealing, and common murder and may- regular system of law and order was

hem. However, the regulators overplayed absent or ineffective, and (2) where the their hand, especially after their original regular system was functioning satisfacleader, Charles W. Jackson, was killed torily. The first case found vigilantism and replaced by the nefarious adventurer, filling a void. The second case revealed Watt Moorman. Bad elements infiltrated vigilantism functioning as an extralegal

both the regulators and their opponents, structure of justice that paralleled the the moderators, but by comparison ‘the regular system. latter seemed to become less obnoxious. Why did vigilantes desire to erect a Although some honorable and level- parallel structure when the regular one headed citizens like John W. Middleton was adequate? There were a number of stayed with the regulators to the end, an reasons. By usurping the functions of attitude of wild vengefulness came to be regular law enforcement and justice —

more characteristic of the band. The early or, at times, duplicating them — the cost , ne’er-do-well group among the modera- of local government was greatly reduced. tors dwindled. As more and more citi- As taxpayers the vigilante leaders and

zens were forced to take sides, many the rank and file benefited from the

joined the moderators in reaction to the reduction in public costs. Second, the sadism and vindictiveness of the swash- process of community reconstruction

buckling Watt Moorman, who affected a through the re-creation of social structure military uniform and blew great blasts on and values could be carried on more draa hunting horn to summon his henchmen. matically by a vigilante movement than


Richard Maxwell Brown

was possible through the regular func- from the dominant faction of Irish Cathotioning of the law. A vigilante hanging lic Democrats. The vigilants actually left was a graphic warning to all potentially the routine enforcement of law to the regdisruptive elements that community val- _ular police and intervened only in a few ues and structure were to be upheld. major cases. The parallel structure of the The sort of impression that vigilantes vigilante movement was utilized to orgawanted to make was that received by nize a reform political party (the People’s young Malcolm Campbell who arrived in —_—— Party) and to shatter the Irish Catholic

Cheyenne, Wyoming, in 1868 at the age Democratic faction by exiling some of its of twenty-eight. No sooner had he arrived leading operatives.

than there were four vigilante hangings. Sometimes the regular and parallel

“So in rapid succession,” he recalled, structures were intertwined. Law-

“came before my eyes instances which enforcement officials often connived

demonstrated the strength of law [as car- with vigilantes. Here a sheriff or police ried out by vigilantes], and the impo- chief was not taken by surprise when a — tence of the criminal. Undoubtedly, these vigilante force bent on a lynching conincidents went far in shaping my future verged upon his jail, for he had helped life and in guiding my feet properly in plan the whole affair. Appearances were those trails of danger where I was later to preserved, usually, by a token resistance apprehend some of the most dangerous on the part of the law officer, but it was

outlaws of the plains’s+ (Campbell later well known in the community that he became a leading Wyoming sheriff). had shared in the vigilante plot. Finally, the vigilante movement some- Why would men violate their oaths times existed for reasons that were essen- and subvert their own functions as

tially unrelated to the traditional officers of the law? For some men the problems of crime and disorder. The San _—s reason _was that they were little more Francisco Vigilance Committee of 1856 is than hirelings of the local vigilante elite one of the best examples of the vigilante to whom were beholden for office. Other

movement as a parallel structure. The officers were of higher social status but, San Francisco vigilantes spoke of a crime as large landholders or businessmen problem, but examination of the evidence themselves, they shared the vigilante does not reveal a significant upsurge of desire to keep down governmental costs.

crime in 1855-1856. The regular author- Little interested in legal niceties, the vigities had San Francisco crime well under ilante-minded law officers were happy to

control. Fundamentally, the San Franci- have a nefarious man disposed of

sco vigilantes were concerned with local quickly, cheaply, and permanently by a political and fiscal reform. They wished lynching. to capture control of the government

Roger Lane | Urbanization and Criminal Violence in the Nineteenth Century: Massachusetts as a Test Case

America is now an urban nation, but suggests the very reverse, that, over the

Americans are still afraid of cities. There long term, urbanization has had a settling, are many dimensions to this fear, but one literally a civilizing, effect on the popula-

of them is especially direct and starkly tion involved. physical. The current concern with The statistical evidence for such a long-

‘safety in the streets” echoes a belief, as term trend is necessarily fragmentary and old as the Republic, that the city is dan- local. But for this purpose local studies gerous, the breeding ground of vice and may well be more reliable than national. violence. Observers of varying sophistica- Figures for the United States as a whole,

tion have pointed out that dark streets compiled by the Federal Bureau of Inveshide dark deeds, and that the anonymity tigation, have been available only since and freedom of urban society, its tempta- 1930. Based on the records of police tions and frenzied pace, all contribute to departments with widely varying stanencourage criminal behavior. From this it dards of accuracy, these have provided a is easy to conclude that with metropolitan generation of criminologists with material growth and the multiplication of all these for argument.! Analyses of crime rates in

conditions, the rate of violent crime is individual urban areas, on the other hand,

inexorably multiplied also. are less complicated by discrepancies in

But constant repetition of a myth is no definition and in police practice. While substitute for proof. Under some circum- few of these reach back to any period stances it does in fact seem clear that before the FBI’s Uniform Crime Reports, migration to the metropolis has been these few are significant. None points to accompanied by disruption and violence. any clear proportional increase in serious This does not mean that there is a neces- crime within particular cities, and the sary or inevitable connection between the more recent suggest, on the contrary, a

growth of cities and the growth of crime. sometimes striking proportional

In fact the existing historical evidence decrease.? Both the decrease and some of the

Reprinted from the Journal of Social History, 2 explanation for it can be demonstrated — (1968), 468-483, by permission. Copyright, 1968, by since it is necessary to choose a single

Peter N. Stearns, editor. area to represent the whole — by an exam191


Roger Lane

ination of nineteenth-century Massachu- and nonurban areas may be great enough setts. A stable eastern state, with one that a drop in the incidence of criminality growing metropolis and a number of in the cities is more than offset by the fact

thriving smaller cities, the Common- that a continually greater percentage of

wealth had a fairly typical experience the population is living in them.’ It is necwith industrial urbanization. As a result essary, to meet this problem, to look at the of the legislature’s enormous appetite for statistics for Massachusetts as a whole.

statistical information, its official records, For most of the nineteenth century the

, including all those relating to criminal use of police records is neither possible

behavior, are probably better than any nor desirable on a statewide basis.? But kept elsewhere.? And while criminal sta- other indices of real criminal activity are tistics are notoriously difficult to deal available. And four of them may be used with, and by themselves offer no firm con- to establish the changing incidence of clusions, the history of the Common- “serious” crime, defined as that which wealth has been abundantly studied, and involves real injury to persons or loss of

may be used to help interpret the raw property.? These four are lower-court

numerical data. Together, the statistics cases, jail commitments, grand-jury cases, and the social record can illuminate sev- and state-prison commitments, all involv-

eral aspects of the history of criminal vio- ing the major common-law offenses lence in America. These include: the against persons or property. The first date changing incidence of disorder itself, the | for which two of these indices were pub-

relation of this change to urban growth, lished in trustworthy form is 1834: the the special conditions which may upset first year for which all four were compiled this relation, and, lastly, the problem of is 1860. The figures for these periods,

public attitudes or concern. expressed in three-year averages, may be While all criminal statistics are subject compared with those for the end of the

to some doubt, the central conclusion — century in the table below. ,

about the figures from Massachusetts may The decline in the officially recorded be stated with confidence: serious crime crime rate is unmistakable here. And it is in metropolitan Boston declined sharply strongly probable that the real decline is between the middle of the nineteenth cen- greater than the statistics indicate. The tury and the middle of the twentieth. This key problem in the interpretation of crimioften-ragged downward trend does not, of __nal statistics is posed by “‘the dark figure”’

course, apply equally to all offenses, but it representing those illegal activities or does to most of the more serious common- incidents which never come to the light of

law crimes. Three independent studies, official attention. But since in later years, by a lawyer, a historian, and a sociologist, as will be discussed below, there were confirm this basic direction.* While the both increasing intolerance of criminal three cover different periods and employ activity and a great growth in the numbers somewhat different methods, they do fit of police and investigative agents, all evitogether, and all are based essentially on dence suggests that this “dark figure’’ was police-arrest statistics, the index most growing proportionately smaller as the widely used by contemporary criminolo- century progressed. Thus Table 17.1 congists.° The most comprehensive, covering siderably understates the real decline. the years from 1849 to 1951, shows a drop For purposes of explanation it is almost

of nearly two-thirds in those crimes equally important to note the pattern of

which the FBI classifies as ‘‘major.’’® this decline. The table lists offenses in the

, But only half the story, at best, can be order of their severity: lower-court cases told through the figures from the metrop- generally involve the least important olis alone. Our concern is with the whole _ crimes, jailings the next, indictments

society. And it has been argued that the _— next, and imprisonments the most. And difference in crime rates between urban — with one exception — the relative rise in


Urbanization and Criminal Violence Table 17.1 Average yearly incidence of cases Table 17.3 Yearly incidence of cases per

per 100,000 population 100,000 population 1834-36 1860-62 1899-1901 1841 1860 1900

Lower court cases 777 707 Total jailcommitments 419 548 969 Jail commitments 333 163 Grand-jury cases 89 117 63 This upward curve in total offenses

_ _Imprisonments 16.8 11.9 5.9 does not have the same importance as the

other, downward curve in the incidence indictments between the 1830s and 1860s of serious crime. The latter represents the

which will be considered later — it is basic statistical conclusion, in that it especially notable that the recorded drop reflects a real situation, a real decline in

in the crime rate is directly proportional the rate of criminal activity. But the to the seriousness of the offense. This is former, while it is merely statistical, is

generally true also when the four indices nontheless important. There is a comple-

used are examined further and broken mentary relationship between the two

into subcategories. Thus for example the trends, and the nature of this relationship combined rate of commitments for homi- _ helps account for much that underlies the

cide, rape, armed robbery, and arson in numbers. , Oo

1860-1862 was 6.8 per 100,000; by 1900 it The entire increase in the criminal stahas dropped to 2.9 per 100,000. Most of tistics of Massachusetts during the period the other data point in the same direction covered may in fact be attributed wholly — not only a fall over time but a fall most to the rise in cases of drunkenness. Indeed

marked in the most serious categories. this one offense, together with simple Meanwhile, however, while the serious assault, its constant companion, may crime rate was falling, the total crime rate serve as a focus for much more. To under-

— or the officially recorded total — was stand the reasons for the rise in drunk actually rising. This apparent paradox arrests is to understand much about the results from the fact that the downward social changes occurring in the ninecurve described above may be wholly teenth century, changes which affected all reversed simply by adding a third official its criminal patterns. category, ‘Crimes against Public Order,”’ It is clear, first, that the mounting total

to the two above. When these offenses are of cases fed into the official machinery of added in — drunkenness is by far the larg- justice does not reflect a real increase in

est of them — the results for the lower the consumption of alcohol. The misuse

courts may be indicated as follows: of drink was throughout the nineteenth

| | Oo century a problem of enormous dimenTable 17.2 Yearly incidence of cases per sions. The continuing debate about the

| 100,000 population. nature of drunkenness, although some of , , , it anticipated the best of current thinking, - 1820 1860-1900 was on the whole punitive and tended to Total lower courtcases 595 1,869 3,317 blame the use of alcohol for virtually all individual, and most social evils.1° But The pattern for these minor crimes is even the most ardent spirits in the temperthe obverse of that for serious offenses, in ance movement did not usually suggest

that the more trivial the degree of the that there was any long-term rise in

offense the larger its proportional increase drunken behavior. They and their oppoover time. While virtually no indictments nents generally united in agreeing that

or imprisonments resulted from third- the situation, in ragged fashion, was class offenses, their addition makes less improving with time. Because much of difference in the case of jailings than of the alcohol was made and sold illegally,

lower- court cases: especially in the countryside, it is diffi-


Roger Lane

cult to investigate this statistically. But farther back the figures go, as noted, the certainly in the metropolis and probably higher is the relative proportion of serious

elsewhere the evidence does suggest a crimes. The authorities, with limited decline. Early in the century even minis- resources, obviously had to deal with terial ordinations, to say nothing of less felony first, indictable crime next, and grave occasions, were frequently bibulous misdemeanor only when resources affairs.11 By the 1830s a substantial por- permitted.

tion of the middle class had renounced Conversely it is notable that as time

the use of hard liquor. The prohibition advanced and it became easier for injured was extended later to all drinks, and its citizens to complain to a policeman, the , champions carried on a continuous politi- tables indicate that proportionately fewer cal and educational campaign against it. complaints were being made. In the city In the 1830s, and again in the 1850s, law of Boston, at least, the result was a proenforcement officers estimated that 1 in gressive decrease in the number of annual every 65 inhabitants of Boston — men, arrests made by each patrolman: in 1855, women, and children — were selling alco- the average was seventy-one per man,

hol for a living, in the latter period in while by 1885 this had dropped to defiance of a state law which prohibited thirty-seven. 14

all private sales.!? Certainly neither this Drawn as a model, this development

proportion nor this widespread evasion of may explain the only apparent anomaly in the law was matched later in the century; table 17.1, already referred to. This is the by about 1880 the ratio was down to 1 fact that between the 1830s and the 1860s

seller in 150 and rising fast. the figures show both a fall in prison com-

On one level, the rising statistics of mitments and a rise in grand-jury indictarrests for drunkenness simply reflect an ments. Perhaps — the subject will be increase in the numbers of professional investigated further — there is no great police and in the penal apparatus. It was paradox at all. District attorneys in the not until 1837 that Boston organized a §$ 1830s, faced with a high incidence of

squad of full-time professionals, and for truly violent criminal behavior, may have many years these were the only ones in had to concentrate on the more important the Commonwealth. But by 1860 all of the prisonable offenses to the neglect of larger cities had organized forces of vary- others, even indictable ones. As their ing sizes, and these had grown and spread resources were increased and as the real to the smaller towns well before 1900.14 crime rate fell, they would be able by the The effect of this, and of a proportionate 1860s to catch up on lesser indictments. increase in the rest of the agents of justice, But there remains a more fundamental is easily demonstrated. In the absence of level of explanation. To account for the police, ordinary citizens were expected to rise in lesser offenses or the drop in more make complaints on their own, and to call serious crimes simply in terms of the on constables only to execute warrants expansion of police, courts, and prosecualready sworn. But while private individ- tors is to misplace the emphasis. The uals may make the effort to initiate the expansion is not cause but symptom. The processes of justice when directly injured, machinery of justice was increased professionals are required to deal, in because of a felt need, a growing intoler-

number, with those whose merely ance of behavior which had earlier been

immoral or distasteful behavior hurts no tolerated, coupled with a belief that the one in particular. It takes real cops, in state and not the individual citizen was

short, to arrest drunks. required to do the necessary job.

Again on this level the relative shortage This process is most evident in Boston of official agents of law enforcement itself. Leading citizens and governmental accounts for one of the most striking officials were always proud of their repucharacteristics of Table 17.1 above. The tation for maintaining a tidy and well-


, Urbanization and Criminal Violence governed ‘order’ in the city. But the major riots in four years, the city had

definition of what constituted ‘order’ acquired a police force. Since then it had changed considerably with time. been growing steadily, at a rate faster than

Josiah Quincy, one of Boston’s first the population. By the Civil War, the citimayors, was also the first to boast that in zens had abandoned their objections to no other city ‘‘of equal population, are uniforms, with their paramilitary connothere fewer instances of those crimes, to tations, and the patrolmen had begun to which all populous places are subject.’’5 carry guns. By the 1880s the force had He had in fact assumed charge, in 1823, of acquired most of its familiar modern

a newly incorporated city of about 45,000 characteristics and functions. And the inhabitants, which officially issued some demand for more men continued — 697 liquor licenses and ignored the exis- despite the fact that the crime rate had tence of a large number of illegal sellers. been dropping for some time and, with it, Relatively little attention was paid to such the workload for each man on the force.

common offenses as simple drunkenness The demand for more men, then,

and assault. The night watch, largely con- reflected not a worsening situation but cerned with the danger of fire or arson, higher standards, a change in attitude. was afraid to enter some of the more Really violent crime brought more severe

notorious neighborhoods. No one retribution than formerly; the same patrolled anywhere in the daytime. offenses which had earned two-year senQuincy’s several terms of office were tences in the 1830s were now punished

marked by frequent battles between rival by three to four years or more in the state gangs of firemen, whose hunger for loot- penitentiary, and the average was still ing threatened the whole institution of going up. While the police stations were fire insurance. When, after one of the still being built for “‘defensibility,”’ there city’s numerous “riots, routs, and tumul- had been — and would be — no largetuous assemblies” had spluttered on for a scale riot for years.1® It is impossible to full week during the long hot summer of imagine a late-century mayor wrestling 1825, Quincy was forced to take personal with mobs as did Quincy in the twenties charge of a posse of citizens to put it | and Theodore Lyman in the thirties. All down. This was clearly an unusual action, of the city had been brought under more

and the mayor refused later opportunities or less effective patrol, and the voters to risk his limbs and authority in physical were demanding that the streets be

combat, preferring to let mob violence cleared not only of arsonists but of

burn out by itself. Nevertheless, neither drunks, peddlers, and truants. Traffic

he nor the voters were unduly alarmed by _ problems were settled not by teamsters the prevailing level of disorder. Citizens with their fists but by officers with whis-

were traditionally supposed to take care tles. The responsibility for individual of themselves, with the help of family, safety had been decisively shifted to friends, or servants when available. An these agents of the law; uniformed men organized professional police would cer- with revolvers were stationed not only in | tainly be expensive and might also be a potentially dangerous areas but in the threat to valued freedoms. Quincy was quiet confines of the public library.’ proud to point out, at the end of his offi- And the end result, reflected in many cial career, that he had not added a single arrests for minor breaches of conduct, constable or watchman to Boston’s part- was a degree of ‘order’ which would

time corps of peace officers. have astonished and perhaps dismayed By the 1880s, when an aldermanic com- an earlier and rougher generation.

mittee echoed Mayor Quincy’s earlier The progressive heightening of stanclaim that Boston was the most orderly of dards of propriety and with it the America’s larger cities, the situation had increasing reliance on official law changed considerably. In 1837, after three enforcement were processes which,


Roger Lane

while most sharply visible in Boston, supervisor. In the city or town the needs were common to the whole society. Tra- of living in closely packed neighborditionally. criminologists have inter- hoods inhibited many actions previously preted the zigs and zags of recorded — unobjectionable. Both blue- and white- criminal statistics in terms of individual collar employees in larger establishments events or situations — war, for example, were mutually dependent on their fel-

or depression. But the change in social lows; as one man’s work fit into

behavior reflected in the two dominant another’s, so one man’s business was no curves of criminality in Massachusetts is longer his own.

so long term and so widespread as to The results of the new organization of suggest a connection with the most fun- life and work were apparent by 1900, damental of contemporary social proc- when some 76 percent of the 2,805,346 esses, that of industrial urbanization inhabitants of Massachusetts were classi-

itself. The nature of that connection has fied as urbanites. Much violent or irregunever been studied in detail, but it may at lar behavior which had been tolerable in

least be outlined. a casual, independent society was no Massachusetts in 1835 had a popula- longer acceptable in the more formalized,

tion of some 660,940; 81 percent rural, cooperative atmosphere of the later overwhelmingly preindustrial, and period. The private, direct response to

native born.!® Its citizens were used to criminal injury was no longer necessary considerable personal freedom. Whether or approved. All cities and most towns teamsters, farmers, or artisans, they were had acquired police forces, constantly all accustomed to settling their own expanding to meet greater expectations. schedules, and the nature of their work Throughout the state, the victims of viomade them physically independent of lence and theft were conditioned to seek each other. None of the more common official help. The move to the cities had, occupations provided any built-in checks in short, produced a more tractable, more against various kinds of personal excess. socialized, more ‘‘civilized’’ generation

Neither fits of violence nor bouts of thanits predecessors.19 drunkenness disrupted any vital patterns. The trend in the direction of higher

- Individual problems, sins, or even crimes standards and a lower level of violence were not generally cause for wider social | may be measured from the early nine-

concern. teenth century through much of the Under these circumstances, while twentieth. But what is true in the long scarcely a frontier, the Commonwealth run is not necessarily evident in the

could afford a fairly high degree of law- short. While the process of urbanization lessness. No city in the state boasted a has helped to raise standards of personal professional police, and the machinery of behavior, it may not do so by itself. And justice was not equipped to handle many there is some indication in the history of cases. Many of the more common forms nineteenth-century Massachusetts that of violence or crime were simply not under unfavorable conditions migration

reported to the agents of law, as those to the cities may at some times have affected either shrugged off their injuries increased the incidence of violently

or struck back directly. unsocial behavior. This may well be true,

But the impact of the twin movements at least, of the long generation between to the city and to the factory, both just 1835 and 1860. gathering force in 1835, had a progres- The existing statistics alone are no sure sive effect on personal behavior through- guide to what was actually happening out the nineteenth century and into the during these crucial early decades. The twentieth. The factory demanded regular- _ Boston arrest figures were not kept until

ity of behavior, a life governed by obe- 1849. For the state as a whole, much of dience to the rhythms of clock and the remaining evidence is ambiguous. As calender, the demands of foreman and explained above, the two main indices,


Urbanization and Criminal Violence

the rate of grand jury indictments and of It must be stressed that economic develimprisonments for felony, point stub- opments were not fully able to keep pace bornly in opposite directions. But there is with migration. Between 1837 and 1845,

good reason to suspect that the period it has been estimated, the amount of from the mid-1830s to the Civil War large-scale or factory employment did illustrates at least a partial, and impor- not increase at all, and in the fifteen tant, exception to the general develop- years following, while the total of factory

ments previously sketched. employees grew to something like 25,000 | From the war on to the end of the cen- or 30,000, the number of outright

tury and beyond, the industrial develop- paupers in the metropolitan area was

ment of Massachusetts, however painful increasing at an even faster rate, to reach for those involved, was at least proceed- a peak of nearly 13,000 in 1860. Without

ing at a pace and along lines already laid the discipline imposed by regular out. The era just before was the one employment, this first large-scale flow of which witnessed the turbulence of transi- migrants into the city was a kind of tion. No similar timespan in fact encom- mutual disaster. The raw arrivals from passed a more rapid increase in the urban the countryside, Yankees as well as Irish,

population. Between 1835 and 1860, had not yet learned to weave warily

while the total population was growing through crowds with their arms held in

from 660,940 to 1,231,066, the proportion close. Often radically insecure in neigh-

of city dwellers leaped from 19 to 44 per- borhoods still unstable, they sought cent of the total. At the same time, too, release in drink. But to drink with strangthe major railroad lines were laid in pat- ers requires different rules and more terns still existing. As steam began to restraints than drinking in more familiar

replace water-power as the major source situations. In this era of swinging elbows, of industrial energy, the factories, earlier bewilderment, and desperate unemploy-

confined to rural sites near waterfalls, ment, it is hard to find evidence that the

began to move into the cities. level of violence was declining.

Social dislocation, meanwhile, accom- Indeed it is easy to find the opposite.

panied economic. All through the period, During this whole period Massachusetts

and especially during and after the was wracked by political instability,

“hungry forties,’ heavy Irish immigra- aggravated by one unpopular war and the tion exacerbated all of the problems of overhanging threat of another one. The city living. By 1855, some 68,100 of the 1850s in particular witnessed a resur168,031 residents of Boston were natives gence of mob violence as Know-Nothings of Ireland.2° Uprooted from a rural set- and Irishmen, opponents and defenders © ting, wholly without skills, the newcom- of slavery, all found occasions to take to

ers experienced the kind of culture the streets.24 These clashes, superim-

shock, prejudice, and alienation which posed on and partly resulting from the would plague other waves of migrants already unhealthy social condition of

later. Crowded into stinking hovels, some Boston, were deeply disturbing to the of them underground, their miserable inhabitants. If the real incidence of crimiconditions of living strained all of the nal behavior was not actually rising at city’s institutions of charity and police. this time, then surely it was not falling at Smallpox, once virtually eliminated, the rate apparent in the generations folbecame again a problem, cholera struck lowing the Civil War. hard, and the death rate about the middle All evidence points to the long-term

of the century climbed to the highest drop in criminal activity as normative point in the city’s recorded history. and associated with urbanization. But the :

In terms of its effect on behavior, all of process was not complete without the these rapid and wrenching changes pro- accompaniment of rapid industrial develmoted the worst aspects of living in the opment. It was this which provided the city without benefit of its compensations. means of absorbing raw migrants, of fit-


Roger Lane

ting them into a “system” which socia- in the last, and reformers endlessly lized and accommodated them into more debated the causal relation between cooperative habits of life. Without this | them. The charge that the city had lost other process, migration to the city alone, control of its “‘dangerous classes’’ was simply by multiplying human contacts, used in several attempts to limit self-govmay very well multiply the incidence of | ernment in Boston, but mob action was criminally violent interaction among the only form of violence which generinhabitants unsuited to its demands. — ally figured in these complaints, and Because of its clear connection with “crime’”’ was used typically as a synonym ethnic prejudice and its dangerous politi- for ‘‘vice.’’23 It is significant that the laws

cal and social implications, the violent concerning drink especially were subject state of Boston during the 1850s was the to constant revision, but except for a source of considerable public concern. reduction in the number of cases involvBut the relation between concern about ing the death penalty, the general crimiviolence and violence itself is not always nal code was not. Legislative action or so uncomplicated. Both in the nineteenth inaction mirrored public concern in this and in the twentieth century, the atti- case. As the sons and daughters of Mas-

tudes of newspapers, scholars, and the sachusetts migrated to the metropolis,

public generally have been various and the image conjured by the fearful was the volatile, the product often of special rake or tempter, not the robber or rapist. interests or misinformation. This makes Nevertheless, however overshadowed such attitudes difficult to measure. But by other issues, there were periodic outthey are nevertheless crucially important bursts of concern about violence or other

to the study of criminal disorder. crime. Often these occurred in response In the long run and in the short, popu- to some new development or threat for

lar concern has a direct effect on the | which the public or authorities were shape of criminal statistics. As it was unprepared. In fact, the history of these

changing public standards which _ threats and of the responses to them comaccounted for the rising total of arrests | prises much of the history of criminalduring the nineteenth century, so police law enforcement.

departments still concentrate on those Thus the multiplication of banks and offenses of greatest current interest. bank notes, through the 1820s, provided

Moreover, it is not simply the actual level golden opportunities for counterfeiters.

of criminal activity, but the balance The nature of the problem, in this case, between this and social attitudes which required a network of private bankers’ determines how much violence is a agents to cooperate across state and even

“problem” at any given time. national boundaries with the appropriate

While public ‘attitudes’ are slippery public authorities. Anti-Catholic rioting, concepts to compare, it does seem that, in the 1830s, was a principal spur to the

in the sense above, the state of Massachu- development of professional police. Dursetts, and the United States in general, ing the 1870s, the growing sophistication had a criminal problem less worrisome in of professional criminals, dramatized by the nineteenth century than in the 1960s. a spectacular series of bank robberies, led

The citizens of the Commonwealth, still to an overhaul of existing detective close to their rural antecedents, were methods in many American cities. Dur-

indeed afraid of cities, which one legisla- | ing the same period, bands of healthy tive committee called ‘“‘the common native vagrants, fugitives from the new

sewers of the state.’ And one major industrial age, were a subject of great

source of this fear was the “‘poverty, vice, concern to the readers of sensational and crime’? commonly associated with |§newspapers, who feared the violent Boston in particular.?? But hostile critics | potential in these ‘‘wild-eyed”’ strangers.

were more interested in the first two than The response in this case was harsher


Urbanization and Criminal Violence

police action and a tightening of the asserted that crime was growing faster rules governing charity and soup than the population. But this tendency to

kitchens. fear was balanced throughout the century These concerns were at any rate, real by pride in growth and progress. And the

and often had lasting effects, although many apocalyptic statements may be

they had little to do with the overall countered with an equal number of

crime rate. Another and more frequent others, more optimistic. Thus even in the kind of scare resulted not from some gen- troubled year of 1859, the state’s attorney uinely new problem but from sudden general could declare that ‘‘at no time in attention focused on an old one. Lincoln the history of Massachusetts have life, Steffens, as a cub reporter in New York liberty, and property been more secure learned how easy it was to manufacture a than at present.’’2¢

“crime wave’ with techniques still famil- In short, while it is possible now to

iar.24 Thus a particularly brutal murder discover a long-term drop in the level of or a series of muggings could touch off a violence, contemporaries were simply wave of arrests ‘‘on suspicion.’’25 Often it not aware of this. The degree of public was simply an investigation or expose of concern has never been, nor is it now, an some endemic form of crime which gen- accurate index of the degree of criminal

erated a sudden excitement, during activity. Indeed the reverse is often true.

which the public was assured that Boston And it is doubly ironic that a drop in the

was facing a threat of unprecedented actual incidence of disorder has been

proportions. accompanied by — and contributed to — But it is impossible, from these brief | a heightened sensitivity to disorder. Such scares, to get any clear sense of direction. sensitivity, by leading to a more demandWhile the definition of the tolerable was ing standard of conduct, has been essen-

altering with time, it was altering slowly tial to the functioning of an

and imperceptibly. And there is no evi- interdependent urban society. But unless dence that, as the century progressed, the the process is recognized and undergap between the level of order expected stood, it may have unsettling effects. and the level actually obtaining was There are times when for various reasons changing in any constant direction. It is the level of violence overbalances current true that the police often felt that they expectations. In such situations the social

were faced with problems of unprece- pressure to maintain and extend high dented magnitude, and chiefs decades standards and to enforce them univerapart warned that the level of juvenile sally may result in frustration. The frusdelinquency and the general breakdown tration may translate into fear. And this of authority threatened the very basis of fear, in turn, may focus on the very urban

society. Other observers, too, perhaps process which helped to create those

beguiled by the image of a more peaceful standards — on the growth of cities itself.

golden age in the past, sometimes


Part Six ©

ee Slavery and the Civil War

The legal and social realities that actually vided by Eugene D. Genovese’s Roll, Jordefined the “‘peculiar institution’’ — slav- dan, Roll: The World the Slaves Made

ery — have long intrigued historians of (1976). But just as relevant to our knowlthe ante-bellum South. In the study that edge of slavery as these more recent stud- follows Kenneth Stampp examines the ies is the perceptive analysis of the law of status of the slave in pre—Civil War state slavery made in 1853 by William Goodell,

law. The premise that the slave was prop- a leading antislavery critic, when he erty rested at the foundation of ante- sought “by an exhibition of the American bellum southern law, and Stampp Slave Code’’ to test the ‘‘moral character

examines the rules and social controls of American slaveholding.”’ For “‘the practhat flowed from that premise. He also tice,” he wrote, ‘‘cannot be better than the considers the fate of slaves given ‘‘virtual code, or rule of conduct, that gives it freedom”’ by their masters and other evi- licence and sanction.’’ Without question,

dence of day-to-day practices that as Genovese and other scholars have deviated from the system as we would pointed out, the slave community describe it if we were drawing evidence asserted in myriad ways the humanity of

only from statute books and court black people. No less certain was the fact

decisions. that white Southerners carried a considerHow slavery worked in practice has able burden of guilt, secret and open

recently been the subject of several major doubt, and even a willingness to soften scholarly studies. Among them, Robert certain features of the formal law so long Fogel and Stanley Engerman’s Time on as it did not threaten the institution of the Cross (1974) argues that the system slavery itself. Yet, as Stampp demonwas far more benign than either the legal strates, what archaic, nineteenth-century evidence or the work of most scholars, — rhetoric termed “the moral character’ of even those most familiar with plantation the slave system meant, in the last analyrecords and slave history, would suggest. sis, that southern whites could guarantee This view, however, has not withstood the institution itself only by placing the critical scrutiny, including that of Stampp values of property above those of humanhimself. Another intriguing alternative ity. Beneficent slavery is a contradiction approach to slavery and the law was pro- in terms.

201 |


Slavery and the Civil War

The complex interrelations between Further Reading southern fears of the blacks, southern con- , cern that new constitutional doctrine Cover, Robert M. Justice Accused: Antislamight jeopardize the stability of the very and the Judicial Process. New Haven: “peculiar institution,’ vigorous northern Yale University Press, 1975. expansion into the western territories, Davis, David Brion. The Problem of Slavand the classic constitutional issues of ery in the Age of Revolution, 1770-1823. Ithfederalism and states’ rights comprise the aca: Cornell University Press, 1975. basis for Arthur E. Bestor’s analysis of the Hyman, Harold M. A More Perfect Union: Civil War as a constitutional crisis. As a The Impact of the Civil War and Reconstruccorrective to an earlier interpretation that tion on the Constitution. New York: Alfred made economic issues and economic dif- A. Knopf, 1973.

ferences between North and South the Nichols, Roy F. American Leviathan: The essential explanation for the Civil War Evolution and Process of Self-Government crisis, Bestor restores constitutional and in the United States. New York: Harper & legal questions to center stage. But he Rowe, 1966. Also published as Blueprints does so not in simplistic terms that depict for Leviathan (1963).

the constitutional issues as abstractions Paludan, Phillip S. A Covenant with

commanding emotional support, nor even Death: The Constitution, Law, and Equality

as a Clash of doctrines that emerged in the Civil War Era. Urbana: University of reflexively as an expression of cultural Illinois Press, 1975. differences between North and South. Randall, J. G., and David Donald. The Civil Instead, Bestor makes a telling argument War and Reconstruction. 2d ed. Boston: D. for understanding southern intransigence C. Heath, 1961. and the ensuing constitutional debates of Sydnor, Charles S. Slavery in Mississippi.

the 1850s as part of a dynamic process 1933. Reprinted. Baton Rouge: Louisiana whose rich complexity he sets forth in State University Press, 1966. bold terms.

Kenneth M. Stampp

Chattels Personal

In Alabama’s legal code of 1852 two that the slave’s status as property was

clauses, standing in significant juxtaposi- incompatible with his status as a person. tion, recognized the dual character of the Individual masters struggled with this

slave.! dilemma in different ways, some conced-

The first clause confirmed his status as ing much to the dictates of humanity, property — the right of the owner to his others demanding the utmost return from “time, labor and services’’ and to his obe- their investment. Frederick Law Olmsted

dient compliance with all lawful com- explained the problem succinctly: “It is

mands. Slavery thus being established by difficult to handle simply as property, a law, masters relied upon the state to use creature possessing human passions and its power against white men who ‘“‘tam- human feelings,... while, on the other pered”’ with their bondsmen, and against hand, the absolute necessity of dealing bondsmen they could not subdue. Courts, with property as a thing, greatly embarpolice, and militia were indispensable rasses a man in any attempt to treat it as a

parts of the machinery of control. person.”’

The second clause acknowledged the After adopting Draconian codes in the

slave’s status as a person. The law early eighteenth century, the various

required that masters be humane to their legislatures in some respects gradually slaves, furnish them adequate food and humanized them, while the courts temclothing, and provide care for them dur- pered their application; but there was no ing sickness and in old age. In short, the way to resolve the contradiction implicit state endowed masters with obligations as in the very term ‘human property.” Both well as rights and assumed some respon- legislators and judges frequently apsibility for the welfare of the bondsmen. peared erratic in dealing with bondsmen But legislators and magistrates were as both things and persons. Alabama’s caught in a dilemma whenever they found code defined the property status of the slave before acknowledging his human status, and throughout the ante-bellum Abridged from Kenneth M. Stampp, The Peculiar South the cold language of statutes and Institution: Slavery in the Ante-Bellum South 192- judicial decisions made it evident that, 236. Copyright, 1956, Kenneth Stampp, by permis- legally, the slave was less a person than a


sion of Alfred A. Knopf, Inc. thing...


Kenneth M. Stampp , In the customary phraseology of the Supreme Court, for ‘“‘with slaves it may be

ante-bellum codes, South Carolina’s dissolved at the pleasure of either party, slaves were ‘‘deemed, held, taken, or by the sale of one or both, depending reputed and adjudged in law to be chat- upon the caprice or necessity of the tels personal, in the hands of their owners owners.” Their condition was compatible

and possessors and their executors, only with a form of concubinage, ‘‘volun-

administrators and assigns, to all intents, tary on the part of the slaves, and permisconstructions and purposes whatsoever.”’ sive on that of the master.” In law there Slaves had the attributes of personal prop- was no such thing as fornication or adulerty everywhere, except in Louisiana (and tery between slaves; nor was there bas-

Kentucky before 1852) where they had the tardy, for, as a Kentucky judge noted, the —

attributes of real estate. Neither the laws father of a slave was ‘‘unknown’’ to the nor the courts, however, were altogether law.? No state legislature ever seriously consistent. In states where slaves were entertained the thought of encroaching generally considered as personalty, they upon the master’s rights by legalizing

were treated as realty for purposes of slave marriages. inheritance. In Louisiana, where they On the contrary, the states guaranteed

were supposedly like real property, they the rights of property in human chattels in retained many of the characteristics of every way feasible. Most southern consti-

“chattels personal.”’ , tutions prohibited the legislatures from

Though the slave was property ‘‘of a emancipating slaves without both the distinctive and peculiar character,”’ consent of the owners and the payment of though recognized as a person, he was a full equivalent in money. Every state legally at the disposal of his master, provided severe penalties for the theft of a whose property right was very nearly slave — a common crime in the anteabsolute. ‘“The master,” proclaimed the — bellum South. In Virginia the penalty was

Louisiana code, “‘may sell him, dispose of two to ten years in the penitentiary, in his person, his industry, and his labor: he Tennessee it was five to fifteen years, and can do nothing, possess nothing, nor in many states it was death. acquire anything but what must belong to. When a bondsman was executed for a his master.” Even in Kentucky, slaves had capital crime the state usually compen‘no rights secured to them by the consti- sated the owner, the normal compensatution, except of trial by jury in cases of tion being something less than the full

felony.’’? | value assessed by a jury. In Arkansas, Legally a bondsman was unable to which gave no compensation, a slave-

acquire title to property by purchase, gift, holder complained bitterly of the “‘injusor devise; he could not be a party to a tice’’ done him when one of his slaves was

contract... , hanged for rape. “I had, or ought to have, Nor could a chattel be a party to a suit, some claims upon the State for the except indirectly when a free person destruction of my property,’’ he thought. represented him in a suit for freedom. In “That would be good policy and good

court he was not a competent witness, law.” Since the execution of a slave except in a case involving another slave. resembled the public seizure or condemHe had no civil rights, no political rights, nation of private property, most of the

no claim to his time, no freedom of states recognized the justice of the

movement. owner’s claim. Sometimes they levied a Since slaves, as chattels, could not special tax on slaves and established a

make contracts, marriages between them separate public fund for this purpose.

were not legally binding. “The relation There were virtually no restrictions

between slaves is essentially different upon the owner’s right to deed his bondsfrom that of man and wife joined in lawful men to others. Normally the courts nulli-

wedlock,”’ ruled the North Carolina fied such transfers only if the seller


Chattels Personal

fraudulently warranted a slave to be ‘“‘free bondsmen together with horses, mules,

from defects’ or ‘vices’? such as the cows, farm implements, and other forms

“habit of running away.” In devising his of personal property. chattels a testator had the power to divide The unsentimental prose of legal codes them among his heirs in any way he saw and court records, of sheriff’s notices and fit — including the power to dissolve fam- administrator’s accounts, gave some indiilies for the purpose of making an equita- cation of the dehumanizing effects of ble distribution. If a master died intestate, reducing people to “chattels personal.”’ the division was made in accordance with Masters who claimed their rights under

the state’s laws of inheritance. the laws of property, and who developed

Sometimes the division provided by a the habit of thinking of their chattels in

will, or the claims of heirs of a master who impersonal terms, provided further evi-

died intestate, could not be realized with- dence. The laws, after all, were not out a sale of slaves. In such cases the abstractions; they were written by practi-

southern courts seldom tried to prevent cal men who expected them to be applied

the breaking up of slave families. The to real situations. Accordingly, slaves

executor of an estate was expected to dis- were bartered, deeded, devised, pledged,

pose of human chattels, like other prop- seized, and auctioned. They were

erty, in the way that was most profitable awarded as prizes in lotteries and raffles; to the heirs. It may be “‘harsh”’ to separate they were wagered at gaming tables and members of families, said the North Caro- horse races. They were, in short, property lina Supreme Court, yet “‘it must be done, in fact as well as in law.

if the executor discovers that the interest Men discussed the price of slaves with of the estate requires it; for he is not to as much interest as the price of cotton or indulge his charities at the expense of tobacco. Commenting upon the extraordi-

others”’... narily good prices in 1853, a South CaroSince slaves were frequently sold on lina editor reported, ‘Boys weighing

credit or used as security for loans, they about fifty lbs. can be sold for about five

were subject to seizure and sale for the hundred dollars.’’ ‘It really seems that

benefit of creditors. A clause in the Vir- there is to be no stop to the rise,” added a ginia code added the proviso that human North Carolina editor. ““This species of chattels were not to be seized “without property is at least 30 percent higher now, the debtor‘s consent’? when there were (in the dull season of the year), than it was ‘other goods and chattels of such debtor last January... What negroes will bring for the purpose.’’ Slaves who were seized next January, it is impossible for mortal were to be sold “‘at the court house of the man tosay’’>... county or corporation, between the hours In new regions — for example, in Alaof ten in the morning and four in the after- bama and Mississippi during the 1830s — noon... on the first day of the court.” In the buying and selling of slaves and plan“execution sales,’ except for mothers and tations was the favorite operation of spe-

small children, family ties were ignored culators. Everywhere people invested

whenever it was beneficial to the debtor. cash in bondsmen as people in an indusAs a witness testified before the Georgia trial society would invest in stocks and Supreme Court, ‘‘It is not usual to put up bonds. Affluent parents liked to give negroes in families at Sheriff’s sales’’* ... slaves to their children as presents. ‘“‘With Executors and administrators also sold us,” said a Virginia judge, ‘‘nothing is so slaves when it was necessary to satisfy the usual as to advance children by gifts of creditors of the deceased. Their notices of slaves. They stand with us instead of sales ‘for the purpose of paying debts’’ money.” A Kentuckian, “‘in easy circumagainst estates appeared in the newspa- stances,’’ was “‘in the habit of . . . presentpers alongside the sheriff’s notices. Some- ing a slave to each of his grandchildren.”

times their advertisements listed “T buy ... Negro boy Jessee,”’ wrote a Ten-


Kenneth M. Stampp , nessee planter, “‘and send him as a gift to ‘died in consequence of injuries inflicted

my daughter Eva and the heirs of her on him by Thos. Kennedy and others,” the | body.’ owner sued and recovered a judgment for Slaveholders kept the courts busy with one hundred and ninety-five dollars and litigation involving titles and charges of costs. A Tennessee slave was hired to a

fraudulent sales. ‘“‘The plaintiff declares man who permitted him to die of neglect.

that the defendent... deceitfully repre- An indignant judge affirmed that “the sented the... slave to be sound except hirer of a slave should be taught... that

one hip, and a good house servant,” ran a more is required of him than to exact from typical complaint. A lawyer, searching for the slave the greatest amount of service,

legal precedents which might justify a with the least degree of attention to his claim of ‘‘unsoundness’’ in a slave comfort, health, or even life’? — and gave

recently sold, cited past judicial opinions a judgment of five hundred dollars for the ‘as regards horseflesh.’’ Two South Caro- master, the sole penalty. An Alabama

linians presented to the state court of slave was scarred by severe whippings

appeals the question of whether the seller inflicted by his hirer. The owner brought or buyer must suffer the loss of a slave suit on the ground that the slave’s ‘‘marwho had committed suicide during the ket value... was permanently injured.’’? course of the transaction.” Families were In all these ways the slave as property sometimes rent asunder as relatives clearly had priority over the slave as a per-

fought for years, in court and out, over son. Contrary to tradition, this was

claims to bondsmen. equally the case when masters executed

Litigation between slaveholders and their last wills and testaments. To be sure, their creditors also brought much busi- some exhibited tender solicitude for their ness to the southern courts. Many masters ‘people’ and made special provisions for who would have refused to sell bondsmen them, but they were decidedly excep-

to traders nevertheless mortgaged them tional. In addition to those who died and thus often made sales inevitable intestate and thus left the fate of their when their estates were settled, if not slaves to be settled by the courts, most tesbefore. A Tennesseean with ‘‘heavy debts tators — Virginians as well as Mississip_ over him” escaped the sheriff by fleeing to pians, large as well as small — merely Texas with his slaves. This was a familiar explained how they wished their chattels

, story in the Old South, so familiar that the to be divided among the heirs... phrase “gone to Texas’? was applied to Testators often specifically authorized any debtor who fled from his creditors. A or ordered the sale of slaves. In 1849 slaveholder would abandon his lands and Martha DuBose, of Fairfield District, escape in the night with his movable chat- South Carolina, provided for a division of tels. The courts heard case after case like — slaves among her devisees “either by sale

that of a Georgian who “clandestinely or otherwise.’ Stephen Taylor, of Edgeremoved his property, consisting of combe County, North Carolina, in 1848 negroes, to... Alabama, ... to avoid the bequeathed to his wife five slaves during payment of his debts,’’ and of a Mississip- her life, after which they were ‘‘to be sold

pian, who ‘‘ran off... into Texas, certain and the money arising therefrom to be negro slaves, with a view of defrauding equally divided’’ among several heirs. In

his creditors.’’® 1842 James Atkinson, also of Edgecombe

The reduction of bondsmen to mere County, instructed his executor to sell pawns in disputes over titles and in nine slaves immediately after his death; actions by creditors was a sordid busi- upon his wife’s death his two remaining ness. But the suits for trespass masters slaves were to be “‘sold at public sale to

brought against those who had injured the highest bidder and the monies arising their chattels were no less depressing. For from said sale equally divided among my example, when a Kentucky bondsman lawful heirs.”’

: 207

Chattels Personal

The offspring of slave women were fre- increasing restrictions. This trend was quently devised before they were born — clearly evident by the 1820s, when rising

occasionally before they were conceived. slave prices and expansion into the

In Fairfield District, South Carolina, in Southwest caused more and more South1830 Mary Kincaid gave a slave woman erners to accept slavery as a permanent named Sillar to a grandchild, and Sillar’s institution. The Nat Turner rebellion and two children to other grandchildren. If northern abolitionist attacks merely acceSillar should have a third child, it was to lerated a trend which had already begun.

go to still another grandchild. If not, ‘I In practice the slave codes went

will that her two children now living be through alternating periods of rigid and sold at twelve years of age and the pro- lax enforcement. Sometimes slaveholders ceeds equally divided among my said demanded even more rigorous codes, and

grand children.” In Mecklenburg County, sometimes they were remiss in enforcing North Carolina, George Houston in 1839 parts of existing ones. When the danger

willed to one daughter a slave named of attack from without or of rebellion Charity and to another daughter “the first from within seemed most acute, they

child that ... Charity shal have...” looked anxiously to the state govern-

Every slave state had a slave code. ments for additional protection. After the Besides establishing the property rights Turner uprising, Governor John Floyd of those who owned human chattels, advised the Virginia legislature: “‘As the these codes supported masters in main- means of guarding against the possible taining discipline and provided safe- repetition of these sanguinary scenes, I guards for the white community against cannot fail to recommend to your early slave rebellions. In addition, they held attention, the revision of all the laws,

slaves, as thinking beings, morally intended to preserve in due subordina-

responsible and punishable for misde- tion the slave population of our State.’’?°

meanors and felonies. The legislature responded with several

Fundamentally the slave codes were harsh additions to the code, but enforcemuch alike. Those of the Deep South ment during the next three decades conwere somewhat more severe than those of tinued to be spasmodic.

the upper South, but most of the varia- At the heart of every code was the

tions were in minor details. The similar- requirement that slaves submit to their ities were due, in part, to the fact that masters and respect all white men. The new states patterned their codes after Louisiana code of 1806 proclaimed this those of'the old. South Carolina‘s code of most lucidly: ‘“‘The condition of the slave 1712 was almost a copy of the Barbadian being merely a passive one, his subordicode; Georgia’s code of 1770 duplicated nation to his master and to all who repre-

South Carolina’s code of 1740; and later sent him is not susceptible of

the Gulf states borrowed heavily from modification or restriction ... He owes to both. In the upper South, Tennessee vir- his master, and to all his family, a respect

tually adopted North Carolina’s code, without bounds, and an absolute obewhile Kentucky and Missouri lifted many dience, and he is consequently to execute

_ passages from Virginia’s. But the similar- all the orders which he receives from ities were also due to the fact that slav- him, his said master, or from them.” A

ery, wherever it existed, made necessary slave was neither to raise his hand certain kinds of regulatory laws. The against a white man nor to use insulting

South Carolina code would probably or abusive language. Any number of acts, have been essentially the same if the Bar- said a North Carolina judge, may consti-

badian code had never been written. tute “‘insolence’’ — it may be merely “‘a

After a generation of liberalization fol- look, the pointing of a finger, a refusal or

lowing the American Revolution, the neglect to step out of the way when a codes underwent a reverse trend toward white person is seen to approach. But

| 208 | Kenneth M. Stampp

each of such acts violates the rules of a permit, or gamble with whites or - propriety, and if tolerated, would destroy with other slaves. He was not to raise cot-

that subordination, upon which our _ ton, swine, horses, mules, or cattle.

social system rests.’’?! | Allowing a slave to own animals,

~The codes rigidly controlled the slave’s explained the North Carolina Supreme - movements and his communication with Court, tended ‘‘to make other slaves dis-

others. A slave was not to be “at large’’ satisfied... and thereby excite... a

without a pass which he must show to spirit of insubordination.’’!

any white man who asked to see it; if he Southern cities and towns supple-

forged a pass or free papers he was guilty mented the state codes with additional of a felony. Except in a few localities, he regulations. Most of them prohibited was prohibited from hiring his own time, slaves from being on the streets after curfinding his own employment, or living few or living in dwellings separate from

by himself. A slave was not to preach, their masters’. Richmond required except to his master’s own slaves on his Negroes and mulattoes to step aside master’s premises in the presence of ~— when whites passed by, and barred them

whites. A gathering of more than a few from riding in carriages except in the slaves (usually five) away from home, capacity of menials. Charleston slaves unattended by a white, was an “unlawful could not swear, smoke, walk with a assembly” regardless of its purpose or cane, assemble at military parades, or

orderly decorum. make joyful demonstrations. In WashingNo person, not even the master, was to ton, North Carolina, the town commis-

teach a slave to read or write, employ = sioners prohibited ‘‘all disorderly

him in setting type in a printing office, or shouting and dancing, and all disorgive him books or pamphlets. A religious derly ... assemblies... of slaves and free _ publication asked rhetorically: ‘Is there Negroes in the streets, market and other any great moral reason why we should public places.” In Natchez, all “strange incur the tremendous risk of having our slaves’ had to leave the city by four wives slaughtered in consequence of our o’clock on Sunday afternoon. slaves being taught to read incendiary Violations of the state and local codes publications?” They did not need to read were misdemeanors or felonies subject to the Bible to find salvation: ‘Millions of punishment by justices, sheriffs, police,

those now in heaven never owned a and constabulary. Whipping was the

bible.”12 most common form of public punishment Farms and plantations employing for less than capital offenses. Except in

slaves were to be under the supervision Louisiana, imprisonment was rare. By the of resident white men, and not left to the mid—nineteenth century branding and

sole direction of slave foremen. Slaves mutilation had declined, though they — were not to beat drums, blow horns, or had not been abolished everywhere. possess guns; periodically their cabins South Carolina did not prohibit branding were to be searched for weapons. They ~ until 1833, and occasionally thereafter were not to administer drugs to whites or slave felons still had their ears cropped. practice medicine. “A slave under pre- Mississippi and Alabama continued to tence of practicing medicine,’ warned a enforce the penalty of ‘‘burning in the

Tennessee judge, ‘might convey intelli- hand’’ for felonies not capitally gence from one plantation to another, of punished.?° a contemplated insurrectionary move- But most slave offenders were simply ment; and thus enable the slaves to act in tied up in the jail or at a whipping post

- concert.’’13 | an , and flogged. Some states in the upper A slave was not to possess liquor, or South limited to thirty-nine the number purchase it without a written order from _ of stripes that could be administered at

his owner. He was not to trade without any one time, though more could be

| Chattels Personal 209

given in a series of whippings over a_ __ states used their police power to prohibit

period of days or weeks. In the Deep the circulation of ‘‘incendiary’’ material

, South floggings could legally be more through the United States mail; on , severe. Alabama permitted up to one numerous occasions local postmasters, hundred stripes on the bare back of a public officials, or mobs seized and slave who forged a pass or engaged in destroyed antislavery publications. | ‘“‘riots, routs, unlawful assemblies, tres- Southerners justified these seizures on

passes, and seditious speeches.” the ground that some slaves were literate State criminal codes dealt more in spite of the laws against teaching them

severely with slaves and free Negroes to read. A petition to the South Carolina than with whites. In the first place, they legislature claimed that ‘‘the ability to made certain acts felonies when commit- read exists on probably every plantation ted by Negroes but not when committed in the state; and it is utterly impossible by whites; and in the second place, they for even the masters to prevent this — as assigned heavier penalties to Negroes is apparent from the cases in which ser-

than whites convicted of the same vants learn to write by stealth.” But

offense. Every southern state defined a whether or not slaves could read, the substantial number of felonies carrying “corrupting influence’ of antislavery capital punishment for slaves and lesser propaganda was bound to reach them punishments for whites. In addition to unless it was suppressed. There seemed murder of any degree, slaves received the to be no choice but to construct an ‘‘intel-

death penalty for attempted murder, lectual blockade’’ against ideas hostile to manslaughter, rape and attempted rape slavery if property were to be protected upon a white woman, rebellion and and the peace of society secured. Hence

attempted rebellion, poisoning, robbery, — the laws controlled the voices and pens and arson. A battery upon a white person of white men as well as black!’ .. .

might also carry a sentence of death Southern slave codes protected the under certain circumstances... owners of bondsmen who attempted to The codes were quite unmerciful abscond by requiring officers to assist in

toward whites who interfered with slave their recapture and by giving all white discipline. Heavy fines were levied upon men power to arrest them. Every state persons who unlawfully traded with required the owner of a fugitive to com-

slaves, sold them liquor without the mas- pensate the captor for his trouble.

ter’s permission, gave them passes, gam- Because of the magnitude of the problem,

bled with them, or taught them to read or Kentucky obligated masters to pay a write... , reward of one hundred dollars for runEvery slave state made it a felony to aways taken “in a State where slavery is

say or write anything that might lead, not tolerated by law.” In an effort to

directly or indirectly, to discontent or induce the return of fugitives escaping to rebellion. In 1837 the Missouri legisla- Mexico, Texas promised a reward of oneture passed an act “‘to prohibit the publi- third the value of a slave who fled cation, circulation, and promulgation of ‘beyond the limits of the slave territories the abolition doctrines.”’ The Virginia | ofthe United States.”18 code of 1849 provided a fine and impris- A slave was legally a runaway if found onment for any person who maintained without a pass beyond a certain pre‘that owners have not right of property scribed distance from home — eight in their slaves.’’ Louisiana made it a capi- miles in Mississippi, twenty in Missouri. tal offense to use ‘‘language in any public If his master could not be located or lived

discourse, from the bar, the bench, the far away, the fugitive was delivered to a stage, the pulpit, or in any place whatso- justice of the peace who committed him ever” that might produce ‘insubordina- to jail. The slave of an unknown master tion among the slaves.’’ Most southern was advertised for a period ranging from

210 ,

Kenneth M. Stampp

three months to one year, and if he was one night a week during their terms of not claimed by the end of this time he service. Everywhere the patrols played a was sold to the highest bidder. The pro- major role in the system of control.

ceeds, of the sale, minus the reward, jail The patrols were naturally more active

fees, and other costs, were recoverable by and efficient in regions with many slaves

the master should he appear at some than in regions with few. In some places

future date. patrol activity was sporadic, at least North Carolina authorized the outlaw- between insurrection panics. ‘‘We should ing of a “vicious” runaway. For example, always act as if we had an enemy in the two justices of New Hanover County gave very bosom of the State,’ warned a group notice that the slave London was “‘lurk- of Charlestonians after the Vesey conspir-

| ing about’ and ‘‘committing acts of = acy.2° But when their fears subsided,

felony and other misdeeds.”’ London was many Southerners looked upon patrol therefore outlawed; unless he surren- service as an irksome duty and escaped it

dered immediately, ‘“‘any person may when possible. Even the slaveholders

KILL and DESTROY the said slave by often preferred to pay the fines levied for such means as he or they may think fit, nonperformance of this duty, or to hire without accusation or impeachment of substitutes as they were sometimes perany crime or offense for so doing.’ At the mitted to do. The complaint of an editor same time, London’s master offered a in Austin, Texas, that the state patrol law reward of fifty dollars for his confine- was not effective, ‘“‘in consequence of the ment in jail, or one hundred dollars for - indisposition of parties to perform their his head. Louisiana permitted a person to duties,” was frequently heard — until the shoot a runaway who would not stop whites were again alarmed by rumors of

when ordered to do so. The state rebellion.?!

Supreme Court cautioned pursuers that But complaints about patrols abusing they ought to try to avoid giving a fugi- their powers were aS common as com-

tive a “mortal wound,” but if he were plaints about their failing to function. killed ‘“‘the homicide is a consequence of |= The nonslaveholding whites, to whom

the permission to fire upon him.’’!9 most patrol service was relegated, freOccasionally a band of runaways was quently disliked the masters almost as

too formidable to be dispersed by volun- intensely as the Negroes, and as

teers, and the governor called upon the patrollers they were in a position to vent militia to capture or destroy it. Ordinar- their feelings toward both. Slaveholders

ily, however, this and other organized repeatedly went to the courts with

police activity was delegated to the slave charges that patrollers had invaded their patrols. A system of patrols, often more premises and whipped their slaves excesor less loosely connected with the mili- sively or illegally. The slaves in turn both tia, existed in every slave state. Virginia hated and feared the ‘‘paterollers’” and empowered each county or corporation retaliated against them when they could. court to “appoint, for a term not exceed- Yet masters looked upon the patrol as an

ing three months, one or more patrols’ to —_— essential police system, and none ever visit ‘‘all negro quarters and other places seriously suggested abolishing it.

suspected of having therein unlawful The final clauses in the southern legal

assemblies,” and to arrest ‘‘such slaves as codes relating directly to the control of

may stroll from one plantation to another slaves were those governing free

without permission.’’ Alabama com- Negroes. The laws reflected the general pelled every slaveowner under sixty and opinion that these people were an anoevery nonslaveholder under forty-five to maly, a living denial ‘‘that nature’s God perform patrol duty. The justices of each intended the African for the status of precinct divided the eligible males into slavery.”’ They ‘‘embitter by their predetachments which had to patrol at least sence the happiness of those who remain


Chattels Personal

slaves. They entice them and furnish In this last ante-bellum decade most

them with facilities to elope.’”’ They were states adopted laws authorizing the “ volpotential allies of the slaves in the event untary enslavement” of these people and of a rebellion. In 1830, David Walker, a — enabling them to select their own masfree Negro who moved from North Caro- ters. Virginia went a step further and perlina to Boston, wrote and attempted to mitted the sale into “‘absolute slavery”’ of circulate in the South a pamphlet which free Negroes convicted of offenses “‘pun-

urged the slaves to fight for their free- ishable by confinement in the penitendom. He thus aroused southern legisla- tiary’’; Florida applied the same penalty

_ tures to the menace of the free Negro.?2 to those who were ‘‘idle’’ or ‘‘dissolute.’’

The trend of ante-bellum legislation This problem, some apparently felt,

was toward ever more stringent controls. would remain unsolved until all Negroes Free Negroes could not move from one and ‘“‘mulattoes’”’ were not only presumed state to another, and those who left their to be slaves but were in fact slaves.

own state for any purpose could not return. In South Carolina and the Gulf ‘A slave,” said a Tennessee judge, ‘‘is states Negro seamen were arrested and not in the condition of a horse... He has kept in custody while their vessels were mental capacities, and an immortal prinin port. Though free Negroes could make ciple in his nature.’”’ The laws did not

contracts and own property, in most “extinguish his high-born nature nor other respects their civil rights were as deprive him of many rights which are circumscribed as those of slaves. They inherent in man.’’25 All the southern

were the victims of the white man’s fears, codes recognized the slave as a person

of racial prejudice, and of the desire to for purposes other than holding him

convince slaves that winning freedom accountable for crimes. Many state con-

was scarcely worth the effort. stitutions required the legislature ‘“‘to

Many Southerners desired the com- pass such laws as may be necessary to plete expulsion of the free Negroes, or oblige the owners of slaves to treat them the re-enslavement of those who would with humanity; to provide for them necnot leave. Petitions poured into the state essary clothing and provisions; [and] to legislatures demanding laws that would abstain from all injuries to them, extendimplement one or the other of these poli- ing to life or limb.”’

cies. In 1849 a petition from Augusta The legislatures responded with laws County, Virginia, asked the legislature to extending some protection to the persons

make an appropriation for a program of of slaves. Masters who refused to feed

gradual removal; all free Negroes who and clothe slaves properly might be refused to go to Liberia should be fined; in several states the court might expelled: from the state within five order them to be sold, the proceeds going

years.23 In 1859 the Arkansas legislature to the dispossessed owners. Those who

required sheriffs to order the state’s abandoned or neglected insane, aged, or

handful of free Negroes to leave. Those infirm slaves were also liable to fines. In who remained were to be hired out as Virginia the overseers of the poor were slaves for a year, after which those who required to care for such slaves and to still remained were to be sold into per- charge their masters.

manent bondage. , Now and then a master was tried and A Texas editor caught the spirit of the convicted for the violation of one of these

extreme proslavery element during the laws. In 1849 the South Carolina

1850s when he proclaimed that the time Supreme Court upheld the conviction of

was ‘‘near at hand for determined a slaveholder who ‘‘did not give his

action.’ Southern free Negroes were negroes enough even of [corn] meal, the ‘destined to be remitted back into slav- only provision he did give.’ In such a ery,” which was their “true condition.’’?4 case, said the court, the law had to be


Kenneth M. Stampp | enforced for the sake of “public senti- substance, into the constitutions of sevment,... and to protect property from eral states in the Southwest: ‘‘Any person the depredation of famishing slaves.” 2 | who shall maliciously dismember or But prosecutions were infrequent. Since deprive a slave of life shall suffer such a slave could neither file a complaint nor punishment as would be inflicted in case give evidence against his master, action the like offence had been committed on a

depended upon the willingness of whites free white person.”’ ,

to testify in the slave’s behalf. This hap- = Eventually all the southern states

pened only under unusual circumstances. adopted laws of this kind. In 1821 South Some of the codes regulated the hours Carolina belatedly provided that a person

of labor. As early as 1740 South Carolina who killed a slave “willfully, mali- |

limited the working day to fifteen hours ciously, and deliberately’’ was to suffer from March to September and fourteen death, and a person who killed a slave in hours from September to March. All the ‘‘sudden heat or passion’”’ was to be fined codes forbade field labor on Sunday. In _ up to five hundred dollars and imprisVirginia a master who worked his slaves oned up to six months. In Alabama a per-

on Sunday, “except in household or son who, “with malice aforethought,”’’ other work of necessity or charity,’’ was caused the death of a slave ‘by cruel

to be fined two dollars for each offense. It whipping or beating, or by any inhuman was permissible, however, to let slaves treatment, or by the use of any weapon in labor on the Sabbath for wages; and the its nature calculated to produce death,”’’ North Carolina Supreme Court ruled that = was guilty of murder in the first degree. it was not an indictable offense to give A master or overseer causing death by them Sunday tasks as a punishment.?7 — cruel whipping or by other cruel punishWith rare exceptions, masters who were ment, “though without any intention to

impunity. , degree. : so inclined violated these laws with kill,” was guilty of murder in the second

The early colonial codes had assessed By the 1850s, most of the codes had only light penalties, or none at all, for made cruelty a public offense even when

killing a slave. South Carolina, ‘‘to not resulting in death. Alabama masters

restrain and prevent barbarity being exer- and overseers who inflicted brutal puncised toward slaves,” provided, in 1740, ishments were subject to fines of from

that a white who willfully murdered a twenty-five to one thousand dollars. A slave was to be punished by a fine of — person who committed an assault and seven hundred pounds or imprisonment __ battery upon a slave not his own, ‘‘withat hard labor for seven years. Killing a out just cause or excuse,”’ was guilty of a slave in “‘sudden heat or passion’”’ or by misdemeanor. Louisiana prohibited the

“undue correction” carried a fine of three owner from punishing a slave with hundred and fifty pounds. In Georgia “unusual rigor’ or “‘so as to maim or

prior to 1770, and in North Carolina prior mutilate him.’’ Georgia more explicitly to 1775, taking a slave’s life was not a __ prohibited “cutting, or wounding, or...

felony. | cruelly and unnecessarily biting or tear-

After the American Revolution there ing with dogs.”’ In Kentucky a slave who was a drastic change of policy. Virginia, was treated cruelly might be taken from in 1788, and North Carolina, in 1791, his master and sold. defined the malicious killing of a slave as But these laws invariably had signifi-

murder subject to the same penalty cant qualifications. For example, the

imposed upon the murderer of a freeman. accidental death of a slave while receivIn 1817 North Carolina applied this prin- ing ‘‘moderate correction’’ was not homi-

ciple to persons convicted of manslaugh- cide. Killing a slave in the act of ter. Georgia’s Constitution of 1798 _ rebellion or when resisting legal arrest contained a clause that was copied, in was always “justifiable homicide.’’ South

| | 213

Chattels Personal

Carolina permitted a white person to case, expressed the apprehension many “apprehend and moderately correct’ a Southerners felt when a slave was exonslave who was at large without a pass erated for an assault on a white man. To and refused to submit to examination; hold that slaves could decide when they ‘and if any such slave shall assault and were entitiled to resist white men was a strike such white person, such slave may dangerous doctrine, said Ruffin. It might be lawfully killed.”” The South Carolina encourage them to denounce “the injuslaw against cruelty concluded with a nul- tice of slavery itself, and, upon that prelifying clause: ‘‘nothing herein contained text, band together to throw off their

shall be so construed as to prevent the common bondage entirely.’’?9 _ :

owner or person having charge of any In a few notable cases the courts

slave from inflicting on such slave such enforced the laws against the killing of punishment as may be necessary for the slaves... Decisions such as these were good government of the same.’ Southern exceptional. Only a handful of whites courts, by their interpretations of the suffered capital punishment for murderlaws, in effect added further qualifica- ing slaves, and they were usually persons tions. Thus the North Carolina Supreme who had committed the offense upon Court ruled that a homicide upon a slave slaves not their own. When a master was did not require as much provocation as a convicted, it was generally for a lesser

homicide upon a white to make it crime, such as killing in ‘‘sudden heat or

justifiable. , passion”’ or by “undue correction.’’ And

Under most circumstances a slave was a convicted killer, whether or not the © powerless to defend himself from an master, rarely received as heavy a penalty assault by a white man. According to the as he would have for a homicide upon a

Tennessee Supreme Court, severe chas- white.

tisement by the master did not justify Actually, the great majority of whites

resistance. If a master exercised his right who, by a reasonable interpretation of the

to punish, “with or without cause, [and] law, were guilty of feloniously killing

the slave resist and slay him, it is slaves escaped without any punishment

murder... because the law cannot recog- at all. Of those who were indicted, most nize the violence of the master as a legiti- were either acquitted or never brought to mate cause of provocation.”’ According to trial. For several reasons this was almost the Georgia Supreme Court, even if the inevitable.

owner should ‘‘exceed the bounds of rea- One major reason was that neither

son... in his chastisement, the slave slaves nor free Negroes could testify

‘must submit... unless the attack... be against whites. There were, as one South-

calculated to produce death.”’28 erner observed, ‘‘a thousand incidents of On rare occasions a court refused to plantation life concealed from public

convict a bondsman for killing a brutal view,” witnessed only by slaves, which overseer (never a brutal master) while the law could not reach. One of slavery’s

resisting an assault that might have ‘most vulnerable points,” a defender of

caused his death. In 1834, the North the institution agreed, was the ‘‘helpless Carolina Supreme Court reversed the position of the slave’? when his master

decision of a lower court which had sen- was ‘‘placed in opposition to him.’’ His tenced a slave to be hanged for the homi- ‘mouth being closed as a witness,” he

cide of an overseer under these had to depend upon whites to testify in

circumstances. Though the slave’s “‘gen- — his behalf.3° But here was the second eral duty’ was unconditional submis- major obstacle in the way of convictions: sion, he nevertheless had the right to white witnesses were reluctant to testify

defend himself against ‘‘an unlawful against white offenders... And there attempt... to deprive him of life.’’ But was still a third obstacle. Even when Chief Justice Thomas Ruffin, in a similar whites agreed to testify, there remained


Kenneth M. Stampp

the problem of getting a white jury to which were usually less concerned about

convict... formalities of traditional English justice In Maryland, Frederick Douglass than about speedy verdicts and certain

remembered hearing white men say that punishments. A slave accused of a capiit was “worth but half a cent to kill a nig- tal offense, according to the South Caroger, and half a cent to bury him.’’3! This lina Code of 1740, was to be tried “‘in the surely was not the attitude of the average most summary and expeditious manner’;

Southerner, but it did indicate how on conviction he was to suffer death by

lightly all too many of them regarded the such means as would be ‘‘most effectual

laws against the killing of slaves. It to deter others from offending in the like

would be too much to say that the codes manner.”’ Justice in the ‘“‘Negro courts’’

gave slaves no protection at all. But it was at best capricious. , would also be too much to say that they For misdemeanors, and in some states extended equal justice and protection to for crimes not punished capitally, the slaves and freemen. If they had, there summary processes of “Negro courts” wou? unquestionab'y have been fewer survived until the abolition of slavery.

Clontous assall ts upon slaves. , Louisiana tried slaves for noncapital

Ther © are many persons, complained felonies before one justice and four slave-

a Mississippi editor, “who think they holders, Mississippi before two justices have the same right to shoot a negro... and five slaveholders,and Georgia before that they have to shoot down a dog, but three justices. Alabama tried slaves for there are laws for the protection of slaves minor offenses before a justice (who as well as the master, and the sooner the could assign a maximum penalty of error alluded to is removed, the better it thirty-nine lashes), and for noncapital will be for both parties.”°? Slavery and felonies before the judge of the probate the racial attitudes it encouraged caused court and two justices of the peace. The

this “error to persist throughout the states of the upper South generally sub-

ante-bellum period. jected slaves accused of misdemeanors to The fate of a slave who was the princi- similar informal and summary trials.

pal, rather than the victim, of an alleged In the nineteenth century most states misdemeanor or felony was highly uncer- gave slaves jury trials in the regular tain. The state codes established regular courts when accused of capital crimes; judicial procedures for the trial of slaves some went further and gave them this accused of public offenses, but probably privilege when accused of any felony. most minor offenses, such as petit lar- The Missouri Constitution of 1820 and

ceny, were disposed of without resort to the Texas Constitution of 1845 provided the courts. For instance, when an Ala- that in criminal cases slaves were to have bama slave was caught stealing from a an impartial trial by jury. On conviction, neighboring plantation, the proprietor a Missouri slave was to suffer “the same agreed not to prosecute if the overseer degree of punishment, and no other, that punished the slave himself. The state would be inflicted on a free white person supreme court sanctioned the informal for a like offense.’’ North Carolina slaves settlement of such cases. Even though an accused of capital offenses were tried in offense was ‘‘criminally punishable,”’ the superior courts, and the law required said the court, so far as the public was the trials to be conducted as the trials of concerned it was better to have the pun- freemen. In Alabama, they were tried ishment ‘‘admeasured by a domestic _ before the circuit court of the county, “‘in

tribunal.’’33 the mode provided by law for the trial of

Nevertheless, many bondsmen who white persons,” except that two-thirds of violated the law were given public trials. the jurors had to be slaveholders. In In colonial days they were always Georgia, capital crimes continued to be arraigned before special ‘“‘Negro courts,”’ tried before three justices until 1850,

| | 215

, Chattels Personal

when the superior courts were given trial of a slave was never the trial of a

jurisdiction. man by his peers. Rather, it was the trial A few states never granted jury trial or of a man with inferior rights by his supeabandoned the informal courts and sum- riors — of a man who was property as

mary procedures even in capital cases. well as a person. Inevitably, most jusThe Virginia code declared that the tices, judges, and jurors permitted quescounty and corporation courts, consisting tions of discipline and control to obscure of at least five justices, ‘‘shall be courts of considerations of even justice.

oyer and terminer for the trial of negroes A slave accused of committing viocharged with felony... Such trials shall lence upon another slave, rather than be... without a jury.’’ Louisiana tried upon a white, had a better chance for a slaves for capital offenses before two jus- fair trial. Here the deeper issues of disci-

tices and ten slaveholders, and South pline and racial subordination were not

Carolina tried them for all offenses before involved, and the court could hear the a justice and five freeholders without a case calmly and decide it on its merits.

jury. Moreover, the penalty on conviction was Many Southerners trained in the law usually relatively light. Slaves were capi-

recognized the possibilities for miscar- tally punished for the murder of other riages of justice in the ‘“‘Negro courts.”’ A slaves almost ae rarely as whites were

South Carolina judge called these courts capitally punished for the | murder of

“the worst system that could be slaves. A bondsman in Rapides Parish, devised.’’In his message to the legislature poumpiana, accused of beating another in 1833, Governor Robert Y. Hayne ack- bondsman to death, was found guilty of nowledged that reform was “imperiously misbehavior” and sentenced to receive called for.’ ‘“‘Capital offenses committed one hundred lashes on four SUCCESSIVE by slaves, involving the nicest questions days and to wear a ball and chain for of the law, are often tried by courts com- three mon ths. A slave in Clay County,

posed of persons ignorant of the law.’’ Missouri, convicted of murdering

An editor affirmed that the life of the another slave, received thirty-nine lashes slave and the property of the master were and was sold out of the state.” . in jeopardy ‘from the ignorance and mal- The southern codes did not prescribe ice of unworthy magistrates.’”’34 However, lighter penalties for slaves who murdered

criticism such as this produced few other slaves than for slaves who murreforms. , dered whites. The theory of the law was In practice, the quality of justice slaves that one offense was as Serious as the received from juries and regular courts other. But the white men who applied was not consistently better than the jus- the law usually thought otherwise.

tice they received from “Negro courts.” When a Louisiana slave accused of When tension was great and the passions § ™urdering a white man (not his master) of white men were running high, a slave had the benefit of two mistrials, an over-

found it as difficult to get a fair trial seer wrote in disgust: “there are some before a jury in one of the superior courts § Slave owners who think that a white of North Carolina or Alabama as he did ™an’s life is worth nothing in comparibefore the justices in one of the informal son with that of a slave.” For some, such

courts of South Carolina or Virginia. as this overseer, the wheels of justice

Nowhere, regardless of constitutional or even in the “Negro courts” turned all too statutory requirements, was the trial of a | Slowly; and critics often held the masters bondsman apt to be like the trial of a free- responsible for it.

man. Though counsel was guaranteed, Fortunately for the slave, his lack of though jurors might be challenged, civil rights and helplessness in the courts though Negroes could testify in cases was mitigated somewhat by either the involving members of their own race, the master’s self-interest or paternalism, or


Kenneth M. Stampp | both. Sometimes bondsmen had the help reminders that some masters could never of their masters in escaping conviction completely forget the human qualities in for legal offenses or were sheltered from _their ‘‘people’’...

the harshest features of the slave codes. Masters who ignored the demands of

| a discipline by flagrantly violating the

Though slaves were not legally permit- slave codes, who elevated their slaves to ted to live independently, a few masters __ virtual freedom, who treated them with nevertheless gave them virtual freedom. utter disregard for their status as propThe North Carolina Supreme Court noted erty, and who strictly regulated their use

a custom that had developed, “‘particu- when bequeathing them to heirs are larly among that class of citizens who justly celebrated in the folklore of slavwere opposed to slavery, of permitting ery. But they are celebrated because their persons of color, who, by law, are their conduct was so abnormal. Had other slaves, to go at large as free, — thereby masters imitated them, the slave system introducing a species of quasi emancipa- —_ would have disintegrated — and a nation

tion, contrary to the law, and against the might have been spared a civil war. policy of the State.’”’ Quakers frequently ‘‘A free African population is a curse to

owned slaves “having nothing but the any country,’ the Chancellor of the

name, and working for their own bene- South Carolina Court of Appeals once fit.” Free Negroes with titles to slaves flatly affirmed. “This race,... in a state usually made their bondage nominal. of freedom, and in the midst of a civiMaryland doubtless contained more lized community, are a dead weight to Negroes living in an “‘intermediate status the progress of improvement.’ Free

between slavery and freedom”’ than any Negroes became ‘‘pilferers and

other southern state.3© | maurauders,” “consumers, without being Masters softened the state codes not producers... governed mainly by the

only by evading them but also by going instincts of animal nature.’’37 Racial atti-

beyond the mere letter of the law in tudes such as these, the fear of free | recognizing their slaves as human Negroes as a social menace, and respect beings. No slaveholder needed to respect for the rights of property caused the the marital ties of his slaves; yet a Ten- southern states to adopt constitutional nesseean purchased several slaves at a prohibitions against the legislative emanpublic sale, not because he needed them, cipation of slaves without the consent of

but because of “their intermarriage with their owners. ,

my servants and their appeals to me to do But the state constitutions put few so.” A Kentucky mistress tried to buy the = obstacles in the way of masters who

| wife of her slave before moving to Mis- | wished to manumit their own slaves. In souri. Another Kentuckian, when obliged _ the border states of Delaware, Maryland

to sell his slaves, gave each an opportu- (until 1860), Kentucky, and Missouri, the nity to find a satisfactory purchaser and sole legislative restrictions were that refused to sell any to persons residing creditors’ claims must be respected and

outside theneighborhood. = that a manumitted slave must not become

Finally, a few slaveholders tempered a _ burden to the public because of age or the codes by refusing to bequeath their infirmity. Virginia added the further conhuman chattels as they did ordinary dition that a manumitted slave was not to property. True, wills showing solicitude remain in the state for more than a year

, for slaves were unusual; they often sin- ‘‘without lawful permission.” A county gled out just one or two from the rest for — or corporation court might grant this per-

special consideration; and the favored mission if it had evidence that the freedones were nearly always being rewarded man was ‘of good character, sober, for loyalty and obedience. Even so, these peaceable, orderly and industrious.’ In expressions of gratitude were touching North Carolina an emancipated slave had

| _ Chattels Personal 217

to leave the state within ninety days, become an element of strength to the

unless a superior court made an excep- enemy.’35 ,

tion because of “‘meritorious service.” In Several states in the Deep South took , Tennessee a slave freed after 1831 had to the step Judge Lumpkin suggested and be sent beyond her borders immediately; prohibited emancipation by last will and after 1854 he had to be sent to the west testament. South Carolina acted as early

coast of Africa. as 1841, when it voided all deeds and In the Deep South the trend was wills designed to free slaves before or

toward increasingly severe legislative after removal from the state. Mississippi, restrictions. In Louisiana (for many years Georgia, Arkansas, and Alabama adopted the most liberal of these states) an act of similar laws during the next two decades.

1807 limited the privilege of manumis- Occasionally a testator attempted to sion to slaves who were at least thirty circumvent the statutes against emanciyears old and who had not been guilty of pation, but almost invariably the court bad conduct during the previous four invalidated his will. ‘“This is another of years. In 1830 Louisiana required eman- those cases,” the South Carolina Court cipated slaves to leave the state within Appeals once complained, “in which the thirty days; after 1852 they had to leave superstitious weakness of dying men, the United States within twelve months. proceeding from an astonishing ignoFive years later, Louisiana entirely prohi- rance of the solid moral and scriptural bited private emancipations within the foundations upon which the institution

state. of slavery rests,... induces them, in The remaining states of the lower their last moments, to emancipate their

South had outlawed private emancipa- slaves, in fraud of the... declared policy tions early in the nineteenth century, of the State.’”” A Charleston editor thought except when granted by a special act of it was sheer hypocrisy for an “‘old sinthe legislature as a reward for ‘“‘meri- ner’ who had ‘enjoyed the profits of the

torious service”... labor of his slaves, during his life time’’

The laws prohibiting private emanci- to emancipate them on his deathbed.?9 | pations did not in themselves prevent a The truth was, of course, that living testator from directing in his will that his masters in all the southern states — even

slaves be removed from the state and in those which prohibited manumission

| freed elsewhere. But the court might by last will and testament — always had

scrupulously examine the wording of the right to remove their slaves to a free such a bequest. The Georgia Supreme state and there release them from bondCourt invalidated wills specifying that age. Though no slave state could deprive slaves be “‘manumitted and sent to a free them of this right, few made use of it.

state,’ because “emancipation... was to Moreover, only a handful of slave-

take effect in Georgia.’”’ However, if the holders wrote wills providing for manuverbs were transposed, if the slaves were missions in states where this continued to be ‘“‘sent to a free state and manumit- to be legal. An even smaller number ted,” the will was valid, because it was would have done so in the Deep South not unlawful to direct emancipation out- had the privilege remained open to them. side the state. Judge Joseph H. Lumpkin In no slave state, early or late in the ante-

urged the Georgia legislature to remedy bellum period, were the total yearly

this “defect” in the law. “I have no par- emancipations more than a small fraction tiality for foreign any more than domestic of the natural increase of the slave popumanumission,” he confessed. ‘‘Especially lation. For example, in 1859, only three

do I object to the colonization of our thousand slaves were emancipated

negroes upon our northwestern frontier. throughout the entire South. At that time They facilitate the escape of our fugitive both Virginia and Kentucky permitted slaves. In case of civil war, they would manumissions by deed or will. Yet Vir-


Kenneth M. Stampp | ginia, with a slave population of a half ian, who willed the unconditional emanmillion, freed only two hundred and sev- cipation of his slaves gave four reasons enty-seven; Kentucky, with a slave popu- for his action: ‘‘Reason the first. Agreelation of nearly a quarter million, freed ably to the rights of man, every human

only one hundred and seventy-six. being, be his or her colour what it may, is Clearly, if the decline of slavery were entitled to freedom... Reason the sec-

to await the voluntary acts of individuals, ond. My conscience, the great criterion, the time of its demise was still in the dis- | condemns me for keeping them in slav-

tant future. The failure of voluntary ery. Reason the third. The golden rule emancipation was evident long before — directs us to do unto every human crea-

the 1830s when, according to Judge _ ture, as we would wish to be done unto; Lumpkin, ‘‘the blind zealots of the and sure! am, that there is not one of us North”’ began their ‘‘unwarrantable inter- would agree to be kept in slavery during ference.’’4° James H. Hammond got at the _a_long life. Reason the fourth and last. I

crux of the matter when he asked _ wish to die with a clear conscience, that I whether any people in history had ever may not be ashamed to appear before my voluntarily surrendered two billion dol- master in a future World ... I wish every

lars worth of property. human creature seriously to deliberate on One of the minority, a North Carolin- my reasons.’’4! ,

Arthur Bestor

The American Civil War as a Constitutional Crisis

Within the span of a single generation — tutional struggle over Reconstruction, during the thirty-odd years that began ~ which lasted a dozen years and proved as with the annexation of Texas in 1845 and harsh and divisive as any cold war in his-

ended with the withdrawal of the last tory. When the nation finally emerged

Union troops from the South in 1877 — from three decades of corrosive strife, no the United States underwent a succession observer could miss the profound alterof constitutional crises more severe and ations that its institutions had undergone. menacing than any before or since. From Into the prodigious vortex of crisis and 1845 on, for some fifteen years, a constitu- war every current of American life had tional dispute over the expansion of slav- ultimately been drawn.

ery into the western territories grew So all-devouring was the conflict and so increasingly tense until a paralysis of nor- momentous its effects, that to characterize

mal constitutional functioning set in. it (as I have done) as a series of constituAbruptly, in 1860-1861, this particular tional crises will seem to many readers an constitutional crisis was transformed into almost irresponsible use of language, a

another: namely, that of secession. grotesque belittling of the issues. PowerThough the new crisis was intimately ful economic forces, it will be pointed out,

linked with the old, its constitutional were pitted against one another in the character was fundamentally different. struggle. Profound moral perplexities The question of how the Constitution were generated by the existence of slavought to operate as a piece of working ery, and the attacks upon it had social and machinery was superseded by the ques- psychological repercussions of incredible

tion of whether it might and should be complexity. The various questions at

dismantled. A showdown had come, and issue penetrated into the arena of politics, the four-year convulsion of Civil War shattering established parties and making ensued. Then, when hostilities ended in or breaking the public careers of national 1865, there came not the hoped for dawn and local leaders. Ought so massive a conof peace, but instead a third great consti- flict to be discussed in terms of so rarefied

an abstraction as constitutional theory? Reprinted from American Historical Review, 69 To ask such a question, however, is to

(1964), 327-352, by permission mistake the character of constitutional 219


Arthur Bestor

crises in general. When or why or how threatened destruction of the constitushould they arise if not in a context of tional framework itself.

social, economic, and ideological The secession crisis of 1860—1861 was , upheaval? A constitution, after all, is obviously an event of this kind. It was a

nothing other than the aggregate of laws, constitutional catastrophe in the most traditions, and understandings — in other direct sense, for it resulted in a civil war words, the complex of institutions and that destroyed, albeit temporarily, the fabprocedures — by which a nation brings to ric of the Union.

political and legal decision the substan- There is, however, another sense —

tive conflicts engendered by changes in subtler, but perhaps more significant — in all the varied aspects of its societal life. In | which the American Civil War may be normal times, to be sure, routine and characterized as a constitutional crisis. To recurrent questions of public policy are put the matter succinctly, the very form not thought of as constitutional questions. that the conflict finally took was deter-

Alternative policies are discussed in mined by the preexisting form of the conterms of their wisdom or desirability. stitutional system. The way the opposing Conflicts are resolved by the ordinary forces were arrayed against each other in

operation of familiar constitutional war was a consequence of the way the

machinery. A decision is reached that is Constitution had operated to array them essentially a political decision, measur- in peace. Because the Union could be, and ing, in some rough way, the political frequently had been, viewed as not more strength of the forces that are backing or than a compact among sovereign states, opposing some particular program of the dissolution of the compact was a con-

, action, a program that both sides concede ceivable thing. It was constitutional

to be constitutionally possible, though not theorizing, carried on from the very birth

necessarily prudent or desirable. | of the Republic, which made secession

When controversies begin to cut deep, the ultimate recourse of any group that

however, the constitutional legitimacy of considered its vital interests threatened.

a given course of action is likely to be Since the American system was a fed-

challenged. Questions of policy give eral one, secession, when it finally

place to questions of power; questions of occurred, put the secessionists into immewisdom to questions of legality. Attention diate possession of fully organized govshifts to the Constitution itself, for the fate | ernments, capable of acting as no ad hoc

of each particular policy has come to insurrectionary regime could possibly

hinge upon the interpretation given tothe — have acted. Though sometimes described fundamental law. In debating these con- as a “rebellion” and sometimes as a “‘civil

stitutional questions, men are not evading war,’ the American conflict was, in a the substantive issues. They are facing strict sense, neither. It was a war between them in precisely the manner that the sit- preexisting political entities. But it was uation now requires. A constitutional dis- not (to use a third description) a “‘war

pute has been superadded to the between the states,” for in war the states controversies already present. , did not act severally. Instead, the war was

Should the conflict become so intense waged between two federations of these

as to test the adequacy of existing mecha- _ states: one the historic Union, the other a nisms to handle it at all, then it mounts to | Confederacy that, though newly created,

the level of a constitutional crisis. Indeed was shaped by the same constitutional the capability of producing a constitu- tradition as its opponent. In short, only

tional crisis is an ultimate measure of the the preexisting structure of the American

intensity of the substantive conflicts | Constitution can explain the actual con- _ themselves. If, in the end, the situation figuration even of the war itself. | explodes into violence, then the catastro- The configurative role that constituphe is necessarily a constitutional one, for _ tional issues played is the point of crucial

its very essence is the failure and the importance. When discussed in their own


The American Civil War as a Constitutional Crisis

terms and for their own sakes, constitu- instead to discover the pattern of their

tional questions are admittedly theoreti- interaction with one another. ! , cal questions. One may indeed say A cogent illustration of this particular

(borrowing a phrase that even academic- point is afforded by the controversy over ians perfidiously employ) that they are slavery, which played so significant a role academic questions. Only by becoming in the crisis with which this paper deals.

: involved with other (and in a sense more Powerful emotions, pro and con, were substantive’) issues, do they become aroused by the very existence of slavery. highly charged. But when they do become Powerful economic interests were

so involved, constitutional questions turn involved with the fate of the institution. out to be momentous ones, for every theo- Nevertheless, differences of opinion, vio-

retical premise draws after it a train of lent though they were, cannot by them-

- practical consequences. Abstract though selves account for the peculiar

constitutional issues may be, they exert a configuration of events that historically powerful shaping effect upon the course occurred. The forces unleashed by the that events will in actuality take. They slavery controversy were essentially indegive a particular direction to forces terminate; that is to say, they could lead to already at work. They impose upon the any number of different outcomes, rangconflict as a whole a unique, and an other- ing from simple legislative emancipation

wise inexplicable, pattern or con- to bloody servile insurrection. In the Brit-

figuration. oe , ish West Indies the former occurred; in

To speak of a configuration of forces in Haiti, the latter. In the United States, by history is to rule out, as essentially mean- contrast with both, events took an exceedingless, many kinds of questions that are ingly complicated course. The crisis can popularly supposed to be both answerable be said to have commenced with a fifteen-

-and important. In particular, it rules out year dispute not over slavery itself, but as futile any effort to decide which one of over its expansion into the territories. It

the various forces at work in a given his- — eventuated in a four-year war that was torical situation was ‘“‘the most important avowedly fought not over the issue of cause’”’ of the events that followed, or “‘the slavery, but over the question of the legal decisive factor’ in bringing them about, perpetuity of the Union. The slavery con-

or ‘the crucial issue’ involved. The rea- troversy, isolated from all other issues, son is simple. The steady operation of a cannot begin to explain why events folsingle force, unopposed and _ uninter- lowed so complex and devious a course. rupted, would result in a development so On the other hand, though other factors continuous as to be, in the most literal § must be taken into account in explaining sense, eventless. To produce an event, one the configuration of events, these other

force must impinge upon at least one factors, isolated from those connected

other. The event is the consequence of with slavery, cannot explain why tensions their interaction. Historical explanation § mounted so high as to reach the breaking

is, of necessity, an explanation of such point of war.

interactions. : No single factor, whatever its nature,

If interaction is the crucial matter, then can account for the distinctive form that it is absurd to think of assigning to any the mid-nineteenth-century American factor in history an intrinsic or absolute crisis assumed. Several forces converged, weight, independent of its context. In the producing a unique configuration. Men _ study of history, the context is all-impor- were debating a variety of issues simultant. Each individual factor derives its sig- taneously, and their various arguments nificance from the position it occupies in intertwined. Each conflict tended to a complex structure of interrelationships. intensify the others, and not only to inten-

The fundamental historical problem, in sify them but also to alter and deflect short, is not to measure the relative them in complicated ways. The crisis was weight of various causal elements, but born of interaction.


Arthur Bestor

The nature of these various converging we find? They argued about economic conflicts is abundantly clear. They are measures — the tariff, the banking system,

spread at length upon the historical and the Homestead Act — for the obvious record. Documents, to be sure, are not reason that economic interests of their always to be taken at face value; there are § own were at stake. They argued about

occasions when it is legitimate to read slavery because they considered the

between the lines. Nevertheless, the docu- issues it raised to be vital ones — vital to

mentary record is the foundation upon those who adhered to the ideal of a free which historical knowledge rests. It can society and vital to those who feared to

be explained, but it cannot be explained disturb the status quo. They argued about away, aS many writers on the causes of the the territories because they felt a deep

Civil War attempt to do. Most current concern for the kind of social order that

myths, indeed, depend on such wholesale would grow up there. They argued about dismissals of evidence. Southern apologe- the Constitution because they accepted its tics took form as early as 1868 when Alex- obligations (whatever they considered ander H. Stephens unblinkingly asserted them to be) as binding. that ‘this whole subject of Slavery, so- These are the data with which the histocalled, ... was, to the Seceding States, but rian must reckon. Four issues were men-

a drop in the ocean compared with... tioned in the preceding paragraph: the | other considerations,’? by which he issue of economic policy, the issue of meant considerations of constitutional slavery, the issue of the territories, and the principle. The dogma of economic deter- issue of constitutional interpretation. At minism can be sustained only by dismiss- the very least, the historian must take all »

ing, as did Charles and Mary Beard in these into account. Other factors there

1927, not merely that part of the record §indubitably were. To trace the interaction which Stephens rejected but also the part of these four, however, will perhaps sufhe accepted. Having decided, like Ste- fice to reveal the underlying pattern of the phens, that ‘‘the institution of slavery was crisis and to make clear how one of these not the fundamental issue,’ the Beards factors, the constitutional issue, exerted a

went on to assert that constitutional configurative effect that cannot possibly

issues likewise ‘‘were minor factors in the be ignored.

grand dispute.’’3 Conflicts over economic policy are When the historical record is as vast as endemic in modern societies. They

the one produced by the mid-nineteenth- formed a recurrent element in nineteenth-

century American crisis — when argu- century American political conflict. To ments were so wearisomely repeated by disregard them would be an even greater such multitudes of men — it is sheer fan- folly than to assume that they determined, tasy to assume that the issues discussed by themselves, the entire course of events. were not the real issues. The arguments of | Between a plantation economy dependent the period were public ones, addressed to __ upon the sale of staples to a world market

, contemporaries and designed to influence and an economy in which commerce, their actions. If these had not touched finance, and manufacturing were rapidly upon genuine issues, they would hardly advancing, the points of conflict were have been so often reiterated. Had other numerous, real, and important. At issue

lines of argument possessed a more com- __ were such matters as banks and corporapelling force, they would certainly have tions, tariffs, internal improvements, land

been employed. grants to railroads, and free homesteads to The only tenable assumption, one that __ settlers. In a general way, the line of divi-

would require an overwhelming mass of | sion on matters of economic policy contrary evidence to rebut, is that men _ tended, at mid-century, to coincide with and women knew perfectly well what the line of division on the question of they were quarreling about. And what do _ slavery. To the extent that it did so (and it


The American Civil War as a Constitutional Crisis

did so far less clearly than many eco- lips speaks frankly of ‘‘race control.” The nomic determinists assume), the eco- effort to maintain that control, he mainnomic conflict added its weight to the tains, has been ‘‘the central theme of divisive forces at work in 1860-1861. Southern history.’’ The factor that has , More significant, perhaps, was another made the South ‘‘a land with a unity and different sort of relationship between despite its diversity,’ Phillips concludes,

the persistent economic conflict and the is “a common resolve indomitably main- ,

rapidly mounting crisis before the Civil tained — that it shall be and remain a War. To put the matter briefly, the consti- white man’s country.’’4

tutional theories that came to be applied It was this indomitable resolve — say with such disruptive effects to the slavery rather, this imperious demand — that lay dispute had been developed, in the first at the heart of the slavery controversy, as

instance, largely in connection with it lies at the heart of the struggle over civil strictly economic issues. Thus the doc- rights today. To put the matter bluntly, trine of strict construction was pitted the demand was that of a master race for a against the doctrine of loose construction completely free hand to deal as it might

as early as 1791, when Alexander Hamil- choose with its own subject population. ton originated the proposal for a central The word “sovereignty’’ was constantly bank. And the doctrine of nullification on the lips of southern politicians. The was worked out with ingenious thorough- concept they were invoking was one that ness in 1832 as a weapon against the pro- Blackstone had defined as ‘‘supreme, irre-

tective tariff. Whatever crises these sistible, absolute, uncontrolled author-

doctrines precipitated proved to be relati- ity.” This was the kind of authority that vely minor ones so long as the doctrines slaveholders exercised over their chattels. were applied to purely economic issues. What they were insisting on, in the politi-

Within this realm, compromise always cal realm, was that the same species of

turned out to be possible. The explosive power should be recognized as belonging

force of irreconcilable constitutional to the slaveholding states when dealing

theories became apparent only when the with their racial minorities. ‘‘State Soverlatter were brought to bear upon the dis- eignty’’ was, in essence, the slaveowner’s

pute over slavery. authority writ large.

Inherent in the slavery controversy If slavery had been a static system, conitself (the second factor with which we fined geographically to the areas where must reckon) were certain elements that the institution was an inheritance from made compromise and accommodation earlier days, then the demand of the slave-

vastly more difficult than in the realm of holding states for unrestricted,

economic policy. To be sure, slavery itself “sovereign” power to deal with it was a had its economic aspect. It was, among demand to which the majority of Ameri-

other things, a labor system. The eco- cans would probably have reconciled

nomic life of many regions rested upon it. themselves for a long time. In 1861, at any

The economic interests that would be rate, even Lincoln and the Republicans affected by any tampering with the insti- were prepared to support an ironclad tution were powerful interests, and they guarantee that the Constitution would

made their influence felt. never be amended in such a way as to Nevertheless, it was the noneconomic interfere with the institution within the

aspect of slavery that made the issues it slaveholding states. An irrepealable

engendered so inflammatory. As Ulrich B. amendment to that effect passed both Phillips puts it, “Slavery was instituted houses of Congress by the necessary twonot merely to provide control of labor but thirds vote during the week before Lin-

also as a system of racial adjustment and coln’s inauguration. The incoming social order.’”’ The word ‘‘adjustment’’ is President announced that he had ‘no an obvious euphemism; elsewhere Phil- objection” to the pending amendment,’

224 | |

Arthur Bestor | | oe Oo and three states (two of them free) actually with slavery, outlawing the foreign slave gave their ratifications in 1861 and 1862.8 trade on the one hand and providing for

If the problems created by slavery had the return of fugitive slaves on the other. actually been, as slaveowners so vehe- Prior to the 1840s constitutional chalmently maintained, of a sort that the sla- lenges to its authority in these matters had veholding states were perfectly capable of | been few and unimportant. Indeed, the handling by themselves, then the security one true crisis of the period, that of 1819-— offered by this measure might well have 1821 over Missouri, was rooted in expan-

been deemed absolute. _ -._ sionism, precisely as the later one was to As the historical record shows, how- _ be. The nation was awakening to the fact

ever, the proposed amendment never that slavery had pushed its way northcame close to meeting the demands of the — +ward and westward into the virgin lands

proslavery forces. These demands, and of the Louisiana Purchase. Only when the crisis they produced, stemmed limits were drawn for it across the whole directly from the fact that slavery was not national domain did the crisis subside.

a static and local institution; it was a pro- Suddenly, in the election of 1844, the digiously expanding one. By 1860 the — question of territorial expansion came to census revealed that more than half the the fore again. Events moved rapidly. slaves in the nation were held in bondage Within the space of precisely a decade, outside the boundaries of the thirteen between the beginning of 1845 and the states that had composed the original end of 1854, four successive annexations Union.? The expansion of slavery meant added a million and a quarter square that hundreds of thousands of slaves were miles to the area under undisputed Amerbeing carried beyond the territorial juris- ican soveignty.1! Expansion itself was ‘dictions of the states under whose laws explosive; its interaction with the smolthey had originally been held in servi- dering controversy over slavery made the tude. Even to reach another slaveholding _latter issue explosive also.

state, they presumably entered that stream The annexation of Texas in 1845, the

of “Commerce... among the several war with Mexico that followed, and the States,” which the Constitution gave Con- § conquests in the Southwest which that gress a power “‘to regulate.’’!° If they were war brought about gave to the campaign

carried to United States territories that against slavery a new and unprecedented had not yet been made states, their pre- | urgency. Within living memory the plains ‘sence there raised questions about the along the Gulf of Mexico had been inunsource and validity of the law that kept | dated by the westward-moving tide of

them in bondage. slavery. Alabama and Mississippi, to say

Territorial expansion, the third factor in nothing of Arkansas and Missouri, furour catalogue, was thus a crucial element nished startling proof of how quickly and in the pattern of interaction that produced ineradicably the institution could estabthe crisis. The timing of the latter, indeed, lish itself throughout great new regions.

indicates clearly the role that expansion Paricularly telling was the example of played. Slavery had existed in English- Texas. There slavery had been carried by

speaking America for two centuries with- American settlers to nominally free soil out producing any paralyzing convulsion. © beyond the boundaries of the United _ The institution had been brought to an States; yet in the end the area itself was end in the original states of the East and = being incorporated in the Union. To North by unspectacular exercises of legis- guard against any possible repetition of lative or judicial authority. Federal ordi- these developments, antislavery forces

nances barring slavery from the Old reacted to the outbreak of the Mexican Northwest had operated effectually yet War by introducing and supporting the inconspicuously since 1787. At many Wilmot Proviso. Originally designed to other points federal authority had dealt apply simply to territory that might be

, | 225

The American Civil War as a Constitutional Crisis

acquired from Mexico, it was quickly take office as his secretary of state, were

changed into an all-encompassing prohib- adamant against any further extension of

ition: ‘““That there shall be neither slavery slavery in any manner: nor involuntary servitude in any territory

| on the continent of America which shall I say now,... as I have all the while said, hereafter be acquired by or annexed to the that on the territorial question — that is, the

United States any... manner what- question of extending slavery under the

ever.’’!2 The steadfast refusal of the Senate national auspices, — I am inflexible. Iam for to accept the proviso did not kill it, for the no compromise which assists or permits the prospect of continuing expansion kept the extension of the institution on soil owned by

doctrine alive and made it the rallying the nation. And any trick by which the

point of antislavery sentiment until the nation is to acquire territory, and then allow

Civil War. , , some local authority to spread slavery over This prospect of continuing expansion it, is as obnoxious as any other. | is sometimes forgotten by historians who , regard the issue of slavery in the terri- The obnoxious ‘‘trick’’ that Lincoln

tories as somehow bafflingly unreal. feared was, of course, the acceptance of

Since 1854, it is true, no contiguous terri- Stephen A. Douglas’s doctrine of popular tory has actually been added to the ‘‘conti- sovereignty. The supreme importance nental’”’ United States. No one in the later that Lincoln attached to the territorial 1850s, however, could know that this was issue was underlined by the final parato be the historic fact. There were ample graph of his letter, wherein he discussed reasons to expect otherwise. A strong fac- four other issues on which antislavery _ tion had worked for the annexation of the feeling ran high: the Fugitive Slave Act, whole of Mexico in 1848. Filibustering the existence of slavery in the national expeditions in the Caribbean and Central capital, the domestic slave trade, and the

America were sporadic from 1849 to 1860. slave code that the territorial legislature of As if to spell out the implications of these New Mexico had enacted in 1859. Conmoves, the notorious Ostend Manifesto of cerning these matters, Lincoln wrote 1854 had announced (over the signatures Seward: ‘‘As to fugitive slaves, District of

of three American envoys, including a Columbia, slave trade among the slave future president) that the United States states, and whatever springs of necessity

could not ‘‘permit Cuba to be African- from the fact that the institution is

ized”’ (in plainer language, could not amongst us, I care but little, so that what allow the slaves in Cuba to become free of is done be comely, and not altogether out-

white domination and control), and had rageous. Nor do I care much about Newdefiantly proclaimed that if Spain should Mexico, if further extension were hedged

refuse to sell the island, “then, by every against.’’15 ,

law, human and divine, we shall be justi- The issues raised by territorial expanfied in wresting it from Spain if we sion were, however, not merely prospectpossess the power.”!3 This was “higher ive ones. Expansion was a present fact, —

law” doctrine with a vengeance. and from 1845 onward its problems were

Behind the intransigent refusal of the immediate ones. Population was moving Republicans in 1860-1861 to accept any so rapidly into various parts of the newly sort of compromise on the territorial ques- acquired West, most spectacularly into tion lay these all too recent developments. California, that the establishment of civil

Lincoln’s letters during the interval governments within the region could

between his election and his inauguration hardly be postponed. Accordingly, within contained pointed allusions to filibuster- the single decade already delimited (that ing and to Cuba.!* And his most explicit is, from the beginning of 1845 until the

instructions on policy, written on Febru- end of 1854), state or terrorial forms of ary 1, 1861, to William H. Seward, soon to government were actually provided for


Arthur Bestor

every remaining part of the national tories,18 despite the abrogation of restricdomain, except the relatively small tions by the Kansas-Nebraska Act and the enclave known as the Indian Territory Dred Scott decision. Especially revealing (now Oklahoma). The result was an actual was the situation in Kansas. Though doubling of the area of the United States blood had been spilled over the introduc-

within which organized civil govern- tion of slavery into that territory, there

ments existed.1© This process of political were actually only 627 colored persons, creation occurred not only in the new slave or free, within its boundaries on the acquisitions, but it also covered vast eve of its admission to statehood (January areas, previously acquired, that had been 29, 1861). The same situation obtained left unorganized, notably the northern throughout the West. In 1846, at the time part of the old Louisiana Purchase. There, the Wilmot Proviso was introduced, the in 1854, the new territories of Kansas and Union had comprised twenty-eight states. Nebraska suddenly appeared on the map. By the outbreak of the Civil War, more With equal suddenness these new names than two and a third million persons were appeared in the newspapers connected to be found in the western areas beyond

with ominous events. the boundaries of these older twenty-eight The process of territorial organization states, yet among them were only 7,687

brought into the very center of the crisis a Negroes, free or slave.12 There was much fourth factor, the last in our original cata- truth in the wry observation of a contem-

| logue, namely, the constitutional one. The porary: ‘“The whole controversy over the

organization of new territories and the Territories... related to an imaginary

admission of new states were, after all, negro in an impossible place.’’?°

elements in a constitution-making ~The paradox was undeniable, and many

process. Territorial expansion drastically historians treat it as evidence of a growing changed the character of the dispute over retreat from reality. Thus James G. Ranslavery by entangling it with the constitu- dall writes that the ‘‘larger phases of the tional problem of devising forms of gov- slavery question... seemed to recede as

ernment for the rapidly settling West. the controversies of the fifties develSlavery at last became, in the most direct oped.” In other words, “while the strug-

and immediate sense, a constitutional gle sharpened it also narrowed.’ The question, and thus a question capable of attention of the country was “diverted disrupting the Union. It did so by assum- from the fundamentals of slavery in its

ing the form of a question about the power moral, economic, and social aspects,’ and

. of Congress to legislate for the territories. instead ‘became concentrated upon the This brings us face to face with the cen- collateral problem as to what Congress tral paradox in the pre-Civil War crisis. should do with respect to slavery in the Slavery was being attacked in places territories.’”’ Hence ‘it was this narrow

where it did not, in present actuality, phase of the slavery question which exist. The slaves, close to four million of became, or seemed, central in the successthem, were in the states, yet responsible ion of political events which actually proleaders of the antislavery party pledged duced the Civil War.” As Randall sees it,

themselves not to interfere with them the struggle ‘‘centered upon a political

there.17 In the territories, where the pro- issue which lent itself to slogan making hibition of slavery was being so intransi- rather than to political analysis.”’?! gently demanded and so belligerently Slogan making, to be sure, is an imporresisted, there had never been more than a tant adjunct of political propaganda, and handful of slaves during the long period slogans can easily blind men to the relaof crisis. Consider the bare statistics. The tively minor character of the tangible census of 1860, taken just before the final interests actually at stake. Nevertheless, a descent into Civil War, showed far fewer much more profound force was at work,

than a hundred slaves in all the terri- shaping the crisis in this peculiar way.

} 227

The American Civil War as a Constitutional Crisis

This configurative force was at work, other hand, the opponents of slavery took shaping the crisis in this peculiar way. an uncompromising stand in favor of this The indirectness of the attack upon slav- particular policy because it was the only ery, that is to say, the attack upon it in the one that the Constitution appeared to territories, where it was merely a future leave open. To retreat from it would be to possibility, instead of in the states, where accept as inevitable what Lincoln called the institution existed in force, was the “the perpetuity and nationalization of unmistakable consequence of certain slavery.’’26 structural features of the American Con- To understand the shaping effect of the

stitution itself. Constitution upon the crisis, one must

A centralized national state could have take seriously not only the ambiguities employed a number of different methods that contemporaries discovered in it, but of dealing with the question of slavery. also the features that all alike considered Against most of these the American Con- settled. The latter point is often neglected.

stitution interposed a barrier that was Where constitutional understandings

both insuperable and respected.?? By were clear and unambiguous, responsible blocking every form of frontal attack, it leaders on both sides accepted without compelled the adoption of a strategy so serious question the limitations imposed indirect as to appear on the surface almost by the federal system. The most striking timid and equivocal.?3 In effect, the strat- illustration has already been given. Antiegy adopted was a strategy of “contain- slavery leaders were willing to have writment.” Lincoln traced it to the founding ten into the Constitution an absolute and fathers themselves. They had, he asserted, perpetual ban upon congressional interput into effect a twofold policy with ference with slavery inside the slaveholdrespect to slavery: ‘‘restricting it from the ing states. They were willing to do so new Territories where it had not gone, because, as Lincoln said, they considered and legislating to cut off its source by the ‘such a provision to now be implied con-

abrogation of the slave trade.’’ Taken stitutional law,” which might without together these amounted to “putting the objection be ‘‘made express, and seal of legislation against its spread.’’ The irrevocable.’’27

second part of their policy was still in Equally firm was the constitutional

effect, but the first, said Lincoln, had been understanding that Congress had full irresponsibly set aside. To restore it was power to suppress the foreign slave trade. his avowed object: “I believe if we could On the eve of secession, to be sure, a few arrest the spread [of slavery] and place it fire-eaters proposed a resumption of the

where Washington, and Jefferson, and importation of slaves. The true index of Madison placed it, it would be in the southern opinion, however, is the fact that course of ultimate extinction, and the the Constitution of the Confederate States public mind would, as for eighty years outlawed the foreign slave trade in terms past, believe that it was in the course of far more explicit than any found in the ultimate extinction. The crisis would be Constitution of the United States.7®

past.’’24 Far more surprising to a modern stuWhether or not slavery could have been dent is a third constitutional understand-

brought to an end in this manner is a ing that somehow held firm throughout

totally unanswerable question, but it the crisis. The Constitution grants Con- ,

requires no answer. The historical fact is gress an unquestioned power ‘“‘to regulate

that the defenders of slavery regarded the Commerce with foreign Nations, and policy of containment as so dangerous to among the several States, and with the their interests that they interpreted it as Indian Tribes.”’29 Employing this power, signifying “that a war must be waged Congress had outlawed the foreign slave

against slavery until it shall cease trade in 1808, with the general acquies-

throughout the United States.’”25 On the cence that we have just noted. To anyone


Arthur Bestor | familiar with twentieth-century American never received significant support from constitutional law, the commerce clause responsible political leaders or from pubwould seem to furnish an obvious weapon lic opinion. No party platform of the for use against the domestic slave trade as entire period, not even the comprehenwell. Since the 1890s the power of Con- sive, detailed, and defiant one offered by gress to regulate interstate commerce has the Liberty party of 1844, contained a

been directed successively against lot- clear-cut proposal for using the com-

_teries, prostitution, child labor, and innu- merce power to suppress the interstate

merable other social evils that are traffic in slaves. Public opinion seems to observed to propagate themselves have accepted as virtually axiomatic the through the channels of interstate constitutional principle that Henry Clay

commerce. (who was, after all, no strict construction-

_ The suppression of the domestic slave ist) phrased as follows in the set of resotrade, moreover, would have struck a far lutions from which the Compromise of more telling blow at slavery than any that 1850 ultimately grew: ‘Resolved, That could possibly have been delivered in the Congress has no power to prohibit or territories. Only the unhampered trans- obstruct the trade in slaves between the

portation and sale of slaves from the slaveholding States; but that the admisolder seaboard regions can account for sion or exclusion of slaves brought from the creation of the black belt that one into another of them, depends exclustretched westward through the new Gulf sively upon their own particular laws.’’3!

states. By 1840 there were already as © Careful students of constitutional his-

many slaves in Alabama and Mississippi tory have long been at pains to point out

together as in Virginia. During the that the broad interpretation that John

twenty years that followed, the number Marshall gave to the commerce clause in of slaves in the two Gulf states almost 1824 in the notable case of Gibbons v. doubled, while the number of slaves in Ogden?? represented a strengthening of Virginia remained almost stationary.*° federal power in only one of its two posThe migration of slaveholding families sible dimensions. The decision upheld

with the slaves they already possessed the power of Congress to sweep aside can account for only part of this change. every obstruction to the free flow of inter-

The domestic slave trader was a key fig- state commerce. Not until the end of the ure in the process. His operations, more- nineteenth century, however, did the over, had the indirect effect of pouring commerce power begin to be used extenmoney back into older slaveholding sively for the purpose of regulation in the states like Virginia, where slavery as an modern sense, that is to say, restrictive

economic system had seemed, in the regulation. The concept of a ‘federal

days of the Revolution, on the verge of police power,” derived from the combankruptcy. Futhermore, a direct attack merce clause, received its first clear-cut upon the domestic slave trade might well |= endorsement from the Supreme Court in

have aroused less emotional resentment the Lottery Case,33 decided in 1903. - than the attack actually made upon the These facts are well known. Few scholmigration of slaveholders to the terri- ars, however, have called attention to the tories, for the slave trader was a univer- dramatic illustration of the difference sally reprobated figure, the object not between nineteenth- and twentieth-cenonly of antislavery invective but even of tury views of the Constitution that is

southern distrust and aversion. afforded by the fact that the commerce , No serious and sustained effort, how- clause was never seriously invoked in ever, was ever made to employ against connection with the slavery dispute. This the domestic slave trade the power of — same fact illustrates another point as Congress to regulate interstate commerce. well: how averse to innovation in consti-

The idea was suggested, to be sure, but it tutional matters the antislavery forces


The American Civil War as a Constitutional Crisis

actually were, despite allegations to the methods of enforcement prescribed by

contrary by their opponents. federal statute consistent with the proce-

Various other constitutional under- dural guarantees and underlying spirit of standings weathered the crisis without the Bill of Rights? From the twentiethparticular difficulty, but to catalogue century viewpoint, this was perhaps the them is needless. The essential point has most profound of all the constitutional been made. The clearly stated provisions issues raised by the slavery dispute. It

of the Constitution were accepted as amounted to a direct confrontation

binding. So also were at least two consti- between the philosophy of freedom and tutional principles that rested upon no the incompatible philosophy of slavery.

specific written text, but were firmly Important and disturbing though the

ingrained in public opinion: the plenary issues were, the mandate of the fugitiveauthority of the slaveholding states over slave clause was sufficiently clear and the institution within their boundaries direct to restrain all but the most extreme and the immunity of the domestic slave leaders from outright repudiation of it.”

trade to federal interference. Of all the ambiguities in the written

In the Constitution as it stood, how- Constitution, therefore, the most porten- | ever, there were certain ambiguities and tous proved in fact to be the ones that certain gaps. These pricked out, as on a lurked in the clause dealing with terrigeological map, the fault line along tory: ‘“The Congress shall have Power to which earthquakes were likely to occur, dispose of and make all needful Rules should internal stresses build up to the and Regulations respecting the Territory

danger point. or other Property belonging to the United Several such points clustered about the States.’’38 At first glance the provision

fugitive-slave clause of the Constitu- seems clear enough, but questions were tion.34 Clear enough was the principle possible about its meaning. Eventually that slaves might not secure their free- they were raised, and when raised they dom by absconding into the free states... turned out to have so direct a bearing Three vital questions, however, were left upon the problem of slavery that they without a clear answer. In the first place, would not down. What did the Constitudid responsibility for returning the slaves tion mean by mingling both ‘“Territory”’

, to their masters rest with the states or the and ‘‘other Property,’’ and speaking first federal government? As early as 1842, of the power “‘to dispose of’’ such propthe Supreme Court, in a divided opinion, erty? Was Congress in reality given a placed responsibility upon the latter.35 power to govern, or merely a proprietor’s This decision brought to the fore a sec- right to make regulations for the orderly

ond question. How far might the free management of the real estate he

states go in refusing cooperation and expected eventually to sell? If it were a

even impeding the process of rendition? power to govern, did it extend to all the The so-called personal liberty laws of subjects on which a full-fledged state was various northern states probed this par- authorized to legislate? Did it therefore

ticular constitutional question. Even endow Congress with powers that were

South Carolina, originator of the doctrine not federal powers at all but municipal of nullification, saw no inconsistency in ones, normally reserved to the states? In its wrathful denunciation of these enact- particular, did it bestow upon Congress, ments, “which either nullify the Acts of where the territories were concerned, a Congress or render useless any attempt to police power competent to deal with execute them.’’3° A third question arose domestic relations and institutions like

in connection with the measures adopted slavery?

by Congress to carry out the constitu- This chain of seemingly trivial questional provision, notably the revised tions, it will be observed, led inexorably Fugitive Slave Act of 1850. Were the to the gravest question of the day: the


Arthur Bestor

future of slavery in an impetuously 1820. Only in the 1840s were these precexpanding nation. On many matters the edents challenged.

decisions made by territorial govern- Because this was the traditional

ments might be regarded as unimportant, answer, it was (by definition, if you like) for the territorial stage was temporary ~ the conservative answer. When the breakand transitional.. With respect to slavery, ing point was finally reached in 1860—

however, the initial decision was 1861 and four identifiable conflicting

obviously a crucial one. A single article groups offered four constitutional docof the Ordinance of 1787 had eventuated trines, two of them accepted this general in the admission of one free state after answer, but each gave it a peculiar twist. another in the old Northwest. The omis- Among the four political factions of sion of a comparable article from other 1860, the least well organized was the territorial enactments had cleared the group that can properly be described as way for the growth of a black belt of slav- the genuine conservatives. Their vehicle ery from Alabama through Arkansas. An in the election of 1860 was the Constituidentical conclusion was drawn by both tional Union party, and a rattletrap vehisides. The power to decide the question cle it certainly was. In a very real sense,

of slavery for the territories was the however, they were the heirs of the old

power to determine the future of slavery Whig party and particularly of the ideas

itself. of Henry Clay. Deeply ingrained was the In whose hands, then, had the Consti- instinct for compromise. They accepted tution placed the power of decision with the view just stated, that the power of

respect to slavery in the territories? This decision with respect to slavery in a par-

was, in the last analysis, the constitu- ticular territory belonged to Congress. tional question that split the Union. To it, But they insisted that one additional three mutually irreconcilable answers understanding, hallowed by tradition,

were offered. should likewise be considered constituThe first answer was certainly the most tionally binding. In actually organizing straightforward. The territories were part the earlier territories, Congress had cusof the “Property belonging to the United tomarily balanced the prohibition of slavStates.’’ The Constitution gave Congress ery in one area by the erection elsewhere

power to “make all needful Rules and of a territory wherein slaveholding

Regulations’ respecting them. Only a would be permitted. To conservatives, definite provision of the Constitution, this was more than a precedent; it was a either limiting this power or specifying constitutional principle. When, on exceptions to it, could destroy the com- December 18, 1860, the venerable John J. prehensiveness of the grant. No such lim- —_ Crittenden offered to the Senate the reso-

itations or exceptions were stated. lutions summing up the conservative

Therefore, Congress was fully authorized answer to the crisis, he was not in reality by the Constitution to prohibit slavery in offering a new plan of compromise. He any or all of the territories, or to permit was, in effect, proposing to write into the

its spread thereto, as that body, in exer- Constitution itself the understandings cise of normal legislative discretion, that had governed politics in earlier, less

might decide. crisis-ridden times. The heart of his plan This was the straightforward answer; it was the reestablishment of the old Miswas also the traditional answer. The Con- souri Compromise line, dividing free ter-

tinental Congress had given that answer ritories from slave.3? An irrepealable in the Ordinance of 1787, and the first amendment was to change this from a Congress under the Constitution had rati- principle of policy into a mandate of con-

fied it. For half a century thereafter the stitutional law.

precedents accumulated, including the That Congress was empowered to

precedent of the Missouri Compromise of decide the question of slavery for the ter-


The American Civil War as a Constitutional Crisis

ritories was the view not only of the con- any Territory of the United States.’’4° The

servatives, but also of the Republicans. Free Soil platform of 1848 had summed The arguments of the two parties were the argument up in an aphorism: “Conidentical, up to a point; indeed, up to the gress has no more power to make a SLAVE

point just discussed. Though territories than to make a KING; no more power to

in the past had been apportioned institute or establish SLAVERY, than to

between freedom and slavery, the Repub- institute or establish a MONARCHY.’’41 As

licans refused to consider this policy as a doctrine of constitutional law, the

anything more than a policy, capable of result was this: the federal government being altered at any time. The Wilmot had full authority over the territories, but Proviso of 1846 announced, in effect, that so far as slavery was concerned, Congress the time had come to abandon the policy. might exercise this authority in only one

Radical though the proviso may have way, by prohibiting the institution there. been in a political sense, it was hardly so The conservatives and the Republicans in a constitutional sense. The existence took the constitutional system as it stood, of a congressional power is the basic con- a combination of written text and historistitutional question. In arguing for the cal precedent, and evolved their variant existence of such a power over slavery in doctrines therefrom. By contrast, the two the territories, the Republicans took the other factions of 1860 — the northern

same ground as the conservatives. In Democrats under Stephen A. Douglas, refusing to permit mere precedent to and the southern Democrats whose senahamper the discretion of Congress in the torial leader was Jefferson Davis and use of that power, they broke with the whose presidential candidate was John C. conservatives. But the distinction they Breckinridge — appealed primarily to made between power and discretion, that constitutional theories above and beyond

is, between constitutional law and politi- the written document and the prece-

cal policy, was neither radical nor dents. If slogans are meaningfully

unsound. applied, these two factions (each in its One innovation did find a place in own way) were the ones who, in 1860, antislavery, and hence in Republican, appealed to a ‘‘higher law.”’

constitutional doctrine. Though prece- For Douglas, this higher law was the

dent alone ought not to hamper the dis- indefeasible right of every community to cretion of Congress, specific provisions decide for itself the social institutions it of the Constitution could, and in Repub- would accept and establish, “Territorial lican eyes did, limit and control that dis- Sovereignty” (a more precise label than

cretion. With respect to congressional “popular sovereignty’) meant that this

action on slavery in the territories, so the right of decision on slavery belonged to

antislavery forces maintained, the due the settlers in a new territory fully as process clause of the Fifth Amendment much as to the people of a full-fledged constituted such an express limitation. state. At bottom the argument was one ‘Our Republican fathers,’ said the first from analogy. The Constitution assigned

national platform of the new party in responsibility for national affairs and 1856, “ordained that no person shall be interstate relations to the federal govern-

deprived of life, liberty, or property, ment; authority over matters of purely without due process of law.”’ To establish local and domestic concern were slavery in the territories ‘“‘by positive leg- reserved to the states. So far as this divi-

islation’’ would violate this guarantee. sion of power was concerned, Douglas

Accordingly the Constitution itself argued, a territory stood on the same operated to ‘‘deny the authority of Con- footing as a state. It might not yet have

gress, of a Territorial Legislation [sic], of sufficient population to entitle it to a vote any individual, or association of individ- in Congress, but its people were entitled uals, to give legal existence to Slavery in to self-government from the moment they


Arthur Bestor 2 | were “organized into political communi- — the Ordinance of 1784.*° This plan, it is

ties.” Douglas took his stand on what he true, treated the territories as virtually

regarded as a fundamental principle of equal with the member states of the

American political philosophy: ‘‘that the Union, and thus supported (as against people of every separate political com- subsequent enactments) Douglas’s plea munity (dependent colonies, Provinces, for the largest measure of local self-govand Territories as well as sovereign |§ ernment. When, however, Douglas went States) have an inalienable right to gov- on to imply that the “Jeffersonian Plan”’ ern themselves in respect to their internal precluded, in principle, any congressio-

polity.’’4? ' nal interference with slavery in the terri-

oy ; | i, tories, he was guilty of outright (avin ts vitally erased he const nsrepresentation,efeson’s orignal

and a state — a distinction that was vital draft (still extant in his own hand)

(as we shall see) to the state-sovereignt included a forthright prohibition of slavinterpretation — Douglas proceeded to ery in all the territories." The Continendeal with the argument that since a terri- tal Congress, it 1s true, refused at the time

torial government was a creation of Con- to adopt this particular acai tact

gress, the powers it exercised were that Douglas mentioned,*® but there is no delegated ones, which Congress itself evidence whatever to show that they was free to limit to overrule, or even to believed.they lacked the power to do so. nar reer ee ; Three years later, the same body exer-

through direct of its . ,; . |exercise a. gota very legislation powerwith by unanimous own. Hecised met this the argument an ; 49 vote ingenious distinction. ‘‘Congress,’ he of the eight states present. ; ,

wrote, “may institute governments for Disingenuousness reached its peak in the Territories * and, having done so Douglas’s assertion that the Ordinance of

may “invest them with powers which 1784 “stood on the statute book unreCongress does not possess and can not pealed and irrepealable ... when, on the exercise under the Constitution.” He con-_ 14th day of May, 1787, the Federal Con-

tinued: “The powers which. Congress vention assembled at Philadelphia and

may thus confer but can not exercise, are proceeded 0 form the Constitution under such as relate to the domestic affairs and which baemaected live. Unrepe aled th °

internal polity of the Territory.’’43 Their ordinance still was, and likewise ann source is not to be sought in any provi- plemented, but irrepealable it was not.

sion of the written Constitution, certainly Sixty days later, on July 13, 1787, Connot in the so-called territorial clause,“4 Brees repealed it outright and substituted

but in the underlying principle of in its place the Northwest Ordinance,*!

an which Douglas chose not to discuss.

self-government, , Despite these lapses, Douglas was, in

, Though Douglas insisted that the doc- truth, basing his doctrine upon one

trine of popular sovereignty embodied undeniably important element in the his‘the ideas and principles of the fathers of toric tradition of American political phi-

the Revolution,” his appeal to history losophy. In 1860 he was the only

was vitiated by special pleading. In his thoroughgoing advocate of local selfmost elaborate review of the precedents determination and local autonomy. He

(the article in Harper’s Magazine from could justly maintain that he was which quotations have already been upholding this particular aspect of the taXen). nerdinance passed over. in apence thethe copstituvona tradition notRepublicans, on'y against orthwes of 1787, with its conservatives and the

clear-cut congressional ban on slavery.*5 but also (and most emphatically) against

Douglas chose instead to dwell at length the southern wing of his own party, upon the “Jeffersonian Plan of govern- which bitterly repudiated the whole ment for the Territories,’’ embodied in notion of local self-government, when it


The American Civil War as a Constitutional Crisis

meant that the people of a territory might quence of reading history backward. The

exclude slavery from their midst. proslavery constitutional argument with

This brings us to the fourth of the par- respect to slavery in the territories cannot

ties that contested the election of 1860, possibly be understood if the fifteen and to the third and last of the answers years of debate prior to 1860 are regarded that were given to the question of where simply as a dress rehearsal for secession. the Constitution placed the power to deal When applied to the question of slavery,

with slavery in the territories. state sovereignty was a positive doctrine,

_ At first glance there would appear to a doctrine of power, specifically, a docbe only two possible answers. Either the trine designed to place in the hands of power. of decision lay with the federal the slaveholding states a power sufficient government, to which the territories had to uphold slavery and promote its expanbeen ceded or by which they had been sion within the Union. Secession might acquired; or else the decision rested with be an ultimate recourse, but secession the people of the territories, by virtue of offered no answer whatever to the probsome inherent right of self-government. lems of power that were of vital concern Neither answer, however, was acceptable to the slaveholding states so long as they to the proslavery forces. By the later remained in the Union and used the Con1850s they were committed to a third stitution as a piece of working machinery.

- doctrine, state sovereignty. , As a theory of how the Constitution - The theory of state sovereignty takes should operate, as distinguished from a on a deceptive appearance of simplicity theory of how it might be dismantled, in most historical accounts. This is state sovereignty gave its own distinctive

because it is usually examined only in answer to the question of where the

the context of the secession crisis. In that authority lay to deal with matters involv-

situation the corollaries drawn from the ing slavery in the territories. All such theory of state sovereignty were, in fact, authority, the theory insisted, resided in exceedingly simple. If the Union was the sovereign states. But how, one may

simply a compact among states that well ask, was such authority to be exerretained their ultimate sovereignty, then cised? The answer was ingenious. The one or more of them could legally and laws that maintained slavery — which peacefully withdraw from it, for reasons were, of course, the laws of the slavewhich they, as sovereigns, might judge holding states — must be given extratersufficient. Often overlooked is the fact ritorial or extrajurisdictional effect.5? In that secession itself was responsible for other words, the laws that established a reducing the argument over state sover- property in slaves were to be respected, eignty to such simple terms. The right to and if necessary enforced, by the federal secede was only one among many corol- government, acting as agent for its prin-laries of the complex and intricate doc- cipals, the sovereign states of the Union. trine of the sovereignty of the states. In At the very beginning of the controthe winter and spring of 1860-61, this versy, on January 15, 1847, five months particular corollary, naked and alone, after the introduction of the Wilmot Pro-

became the issue on which events viso, Robert Barnwell Rhett of South

turned. Earlier applications of the doc- Carolina showed how that measure could trine became irrelevant. As they dropped be countered, and proslavery demands from view, they were more or less forgot- supported, by an appeal to the mystique ten. The theory of state sovereignty came of the sovereignty of the several states:

to be regarded simply as a theory that , had to do with the perpetuity of the Their sovereignty, unalienated and unimUnion. paired... exists in all its plenitude over The simplicity of the theory is, how- our territories; as much so, as within the ever, an illusion. The illusion is a conse- limits of the States themselves... The only


Arthur Bestor | effect, and probably the only object of their minated were abstruse. They concerned a

reserved sovereignty, is, that it secures to seemingly minor detail of the constitueach State the right to enter the territories tional system. The arguments that sup-

with her citizens, and settle and occupy ported the various positions were

them with their property — with whatever intricate and theoretical. But the abstractis recognised as property by each State. The ness of constitutional issues has nothing ingress of the citizen, is the ingress of his to do, one way or the other, with the role sovereign, who is bound to protect him in they may happen to play at a moment of

his settlement.*3 crisis. The sole question is the load that

| , events have laid upon them. Thanks to

Nine years later the doctrine had the structure of the American constitu-

become the dominant one in proslavery tional system itself, the abstruse issue of thinking, and on January 24, 1856, Robert slavery in the territories was required to

Toombs of Georgia summed it up suc- carry the burden of well-nigh all the

cinctly: “Congress has no power to limit, emotional drives, well-nigh all the politirestrain, or in any manner to impair slav- cal and economic tensions, and well-nigh

ery: but, on the contrary, it is bound to all the moral perplexities that resulted protect and maintain it in the States from the existence in the United States of where it exists, and wherever its flag an archaic system of labor and an intoler-

- floats, and its jurisdiction is para- able policy of racial subjection. To

mount.’’>4 In effect, the laws of slavery change the metaphor, the constitutional were to become an integral part of the question of legislative authority over the laws of the Union, so far as the territories territories became, so to speak, the nar-

were concerned. _ row channel through which surged the Four irreconcilable constitutional doc- torrent of ideas and interests and anxie-

trines were presented to the American ties that flooded down from every

people in 1860. There was no consensus, drenched hillside upon which the storm and the stage was set for civil war. The cloud of slavery discharged its poisoned issues in which the long controversy cul- rain.

Part Seven | The New Legal Order: Reconstruction and the Gilded Age

Each of the articles in this section Charles W. McCurdy’s study of Justice

explodes what had been a long-accepted Stephen Field and ‘‘the jurisprudence of interpretive view of post—Civil War con- government-business relations.” It has

stitutional history. In his study of the long been a staple concern of constitu-

reconstruction of federal judicial power, tional historians to appraise the role of the William Wiecek subjects to close reap- Supreme Court in ordering the relations praisal the conventional wisdom — also between business and government in the challenged tellingly in a recent book by late nineteenth century. That the Gilded Stanley I. Kutler. — that depicted the Age produced a classic, full-blown ‘“‘judiimmediate postwar years as a period of cial conservatism’? — the most notable ‘congressional ascendency,’ when the product of which was the transformation

Supreme Court and the federal judiciary of the Fourteenth Amendment into a

generally were intimidated by the Radi- charter of “entrepreneurial liberty’? — is cals in Congress. Wiecek carefully exam- indeed a view difficult to fault. What ines the legal and constitutional history of McCurdy decisively corrects, however, is the removal power, for example, and dem- the simplistic understanding of Gilded onstrates that the triumph of centralized Age constitutional law that long underlay federalism as the result of the Civil War in this view. Lawyers and historians built

fact brought an attendant expansion of their analysis of judicial conservatism federal judicial power. The augmented mainly upon study of the fate of regula-

jurisdiction and power of the national tory legislation in the hands of the courts, Wiecek maintains, ‘‘proved to be Supreme Court. McCurdy argues that they one of the most important and most last- accepted too easily the thesis that Justice

ing legacies of Reconstruction.’ Both Field was the architect of a constitutional institutional and statutory innovation version of laissez faire that tried to reduce established the framework for vigorous state power to ordinary police functions. federal judicial intervention in the affairs But an alternative view of the leading eco-

of the nation during the years that nomic issues of late-nineteenth-century —

followed. constitutional litigation is possible; Precisely why such innovations were of McCurdy, by stressing elements in Field‘s such crucial importance is clarified by jurisprudence that left the state with a vig235


The New Legal Order

orous set of powers clearly differentiated History of the U.S. Supreme Court. New from private-sector concerns, casts a York: Macmillan, 1971. Vol. 6, pt.1. sharply focused new light on judicial Fine, Sidney B. Laissez Faire and the Gen-

conservatism. eral Welfare State. Ann Arbor: University of

Further Reading Michigan Press, 1956. Belz. H Graham, Howard J. Everyman’s Constitue'Z, Herman J. Reconstructing the Union: tion. Madison: State Historical Society of Conflicts of Theory and Policy during the Wisconsin. 1968

ivil War. Ithaca: Cornell University Press _ eile y , Kutler, Stanley. Judicial Power and Beth, Loren P. The Development of the _ Reconstruction Politics. Chicago: University

a of Chicago Press. 1968. | | . yg | . . Americanae Constitution, 1877-1917. Newand |— | -Twiss, Benjamin. Lawyers the ConstiYork: Harper & Row,1971. ; . ,,, -* ae oo ea | tution. Princeton: Princeton University Fairman, Charles. Mr. Justice Miller and. — Pp |

| "og n ress, 1942. :

the Supreme Court, 1862-1890. Cambridge: Harvard University Press, 1939.

—_——.. Reconstruction and Reunion, nee aso works PY uyman ron nv and

: 1864-88. Oliver Wendell Holmes Devise Dart 6 ) Onda, In further Neading,

— William M. Wiecek os : | The Reconstruction of Federal Judicial Power, 1863-1876

In no comparable period of our nation’s val,”’ first gave the federal courts new

history have the federal courts, lower and responsibilities for protecting the rights of Supreme, enjoyed so great an expansion Negroes and federal officials in the South.

of their jurisdiction as they did in the It was later used by corporations seeking

years of Reconstruction, 1863 to 1876. To to evade the hostility of Granger juries in a court, jurisdiction is power: power to state courts by resorting to the more sym-

decide certain types of cases, power to pathetic purlieus of the federal courts. hear the pleas and defenses of different Second, Congress extended the habeas groups of litigants, power to settle policy corpus powers of the federal courts and questions which affect the lives, liberty, transformed the nature of the Great Writ or purses of men, corporations, and gov- itself. Third, Congress organized a new ernments. An increase in a court’s juris- federal court, the United States Court of diction allows that court to take on new Claims, to handle claims against the fedpowers, open its doors to new parties, and eral government, and allowed appeals to command the obedience of men formerly go from it to the United States Supreme

strangers to its writ. Thus it is that in Court. Fourth, Congress enacted a bank-

crabbed and obscure jurisdictional stat- ruptcy law which transferred much of the utes a hundred years old we may trace out individual and corporate insolvency busi-

great shifts of power, shifts that left the ness from the state courts to the federal nation supreme over the states in 1876 courts. By creating a claims court and and that gave the federal courts a greater making federal district judges bankruptcy control over the policies of Congress than arbiters, Congress gave the federal courts

they had before the Civil War. i wide powers to regulate the national The courts’ jurisdiction was enlargedin economy. Not all of these jurisdictional five ways. First, Congress permitted many innovations stuck. Congress repealed the cases that had been begun in state courts —_ bankruptcy statute only eleven years after

to be taken out of them and tried in federal its passage. Yet in the long run, all the

courts. This procedure, known as “remo- _ jurisdictional statutes of the Reconstruc-

| - | tion era laid the groundwork for the judi-

, , , 237 OO

Abridged from American Journal of Legal History, cial self-assertiveness of the late

13 (1969), 333-359, by permission. - nineteenth and early twentieth centuries.


William M. Wiecek

In the twentieth century, removal became congressional Radicals maliciously a means of protecting the civil liberties of lopped off this or that segment of their

all Americans, not just of southern jurisdiction. The courts, we once read,

Negroes. Habeas jurisdiction enabled fed- were bullied into submission to Congress eral courts to supervise the administration and were left impotent to deflect the sub-

of justice in state courts. Removal and _jugation of the white South. |

habeas corpus became two of i e chief This prevalent misapprehension about procedura’ sup pons. or “hen lite ties the federal courts’ powers is derived from reps 0 ourieen d mendment , b: ak. two errors commonly made by historians ONBTESS ite. ch a * the “taal e : hostile to Republican accomplishments: muPry statute, shorn "T t th Bean 0 he first, they exaggerated the importance of predecessor in 1808, tn the 1960s, thy elected contomporary sources; and, ec

lions of dollars of claims yP ond, they failed to investigate carefully

: , the statutes and courts’ opinions of the

The responsibility for this accretion of period. The extraordinary and unreprepower to the courts lies primarily with sentative act of Congress in 1868 that Congress. Federal judges cannot confer withdrew recently granted jurisdictional

jurisdiction on themselves, ab initio, authorization so as to prevent William

because the Constitution gives to Con- McCardle from taking his habeas corpus gress alone the ability to make ‘‘excep- appeal to the Supreme Court brought tions and regulations’ controlling the down the wrath of Democrats and conser-

jurisdiction of any federal court.1 The vative Republicans on the heads of the President’s role in expanding or narrow- Radicals and the Supreme Court justices. ing the jurisdiction of the courts is usually It is from these biased observers that his-

minimal.? It is Congress in the first torians have taken their views of the

instance that gives new powers to the courts’ power just after the Civil War.4 courts or takes them away. When Con- Contemporaries and historians alike congress expanded the jurisdiction of the fed- veniently ignored numerous statutes

eral courts during Reconstruction, it did increasing the federal courts’ jurisdiction,

so sometimes deliberately, sometimes as well as Supreme Court opinions

absentmindedly; its intention was clear in vigorously implementing this statutory

one statute, ambiguous and vague in grant. This paper reviews some of those another. But the result by 1876 was clear: statutes and opinions in an attempt to Congress had determined to expand the _ restore some realistic perspective to con, power of the federal courts, sometimes at _ gressional-judicial relations in the Reconits own expense, more often at the states’, struction era. to make them partners in implementing The most important source of new fed-

national policy. eral judicial power was the removal legisUntil recently historians have scouted _lation of the postwar years.5 The removal the part played by the federal courts,espe- _— jurisdiction of the federal courts had been cially the Supreme Court, in Reconstruc- _ narrowly restricted before the Civil War.

tion. Because they emphasized Congress’s Because the constitution nowhere forceful assertion of its powers after the | expressly authorized federal courts to death of Lincoln, historians tended to see _—ihear suits removed from state courts,° it

the Supreme Court as intimidated by Con- —_—- was not clear that removal was constitu-

gress. The justices, according tothis view, tionally permissible until Justice Joseph were so abjectly cowed by Radical threats § Story’s opinion in Martin v. Hunter’s Les-

to strip the courts of their jurisdiction that see.” Story there held that the Constituthey offered no resistance to unconstitu- tion implicitly sanctioned removal, and tional laws. When judges did dare to flap that even cases which had gone to judgtheir robes in protest against the usurpa- ment in the state courts could be removed

tion of power by the legislative branch, to federal courts. He also insisted that

, | 239

The Reconstruction of Federal Judicial Power

Congress was obliged to enact statutes an auxiliary procedural device for protectvesting in the federal courts all constitu- ing the enforcement of substantive poli-

tionally authorized jurisdiction. Congress cies unrelated to removal; second, it eventually did this in the Reconstruction enacted other removal statutes with the

years. explicit and primary objective of expandThe original grant of removal jurisdic- ig federal judicial power. tion, section 12 of the 1789 Judiciary Act, Many Reconstruction statutes which was quite limited. Congress might have provided for the enforcement of federal provided that any party could remove a __laws or for the protection of an individsuit presenting a federal question orasuit ual’s rights under the federal Constitution

in which a party on one side lived in a also included removal provisions. Such state different from the residence of a removal sections were always ancillary to party on the other.? Instead, it refused to some other policy objective, such as colpermit removal of federal question cases lecting revenue or protecting freedmen. as such. Only diversity suits could be They also reflected a growing Republican removed, and then only by the defendant disenchantment with state courts. As conwho was an alien or who did not reside in gressmen’s respect for the independence

the forum state.1° In addition, no suit of the state benches diminished when could be removed unless the ‘“matter’’ they came to believe that local judges involved had a financial value of at least were trying to thwart national policy, they

five hundred dollars.1! did not hesitate to by-pass the state judiThe shortcomings of section 12 became _—_‘Cial machinery altogether in order to pro-

apparent within twenty-five years after its tect federal officers and freedmen. This enactment. When New England ship- can be most clearly seen by looking at four

owners harassed federal customs officers Statutes in chronological order: the by vexatious lawsuits during the War of | Habeas Corpus Act of 1863, the 1866 1812, Congress responded by passing the | amendment to the 1863 Habeas Corpus removal provisions of the Revenue Act of | Act, the Internal Revenue Act of 1866, and February 4, 1815.12 Section 8 of this stat- | the 1871 Voting Rights Act.

ute made removal available in actions The removal provisions of the 1863

begun ‘“‘for any thing done, or omitted to Habeas Corpus Act!5 were modeled on

be done, as an officer of the customs, or earlier removal legislation and were for any thing done by virtue of this act.’’ designed to protect federal officials who

Congress again turned to the courts for arrested persons from suits for false

help in implementing its policies in 1833 imprisonment. The act also contained a when it passed the Force Act to suppress new increment to the expansion of federal South Carolina’s resistance to the enforce- removal power: its umbrella of protection

ment of federal revenue laws.‘ Section 3 was not limited to acts done under any of the act permitted the removal of suits one federal statute. It gave blanket protecinvolving ‘‘any right, authority, or title’ tion to federal officers from all civil and under any federal revenue statute. criminal actions arising out of any official On the eve of the Civil War, Congress acts. had thus hesitantly groped toward a com- When Congress amended the 1863 Act prehensive system of removal legislation in 1866, it included provisions that in the 1789, 1815, and 1833 statutes, but it showed its increasing annoyance with had not come near to giving the federal state judges and prosecuting attorneys courts plenary removal jurisdiction.14 who, it believed, flouted federal removal Only the recurring crises of the war and laws. The 1866 amendment voided all Reconstruction years could provide proceedings in state courts after removal impetus for that. Congress conferred this and made any person involved in such plenary jurisdiction incrementally and in void proceedings liable to the removing two ways. First, it authorized removal as party for damages and double costs.‘


William M. Wiecek | , The 1871 Voting Rights Enforcement believe that, from prejudice or local influAct made it still easier to by-pass the state ence, he will not be able to obtain justice courts.17 The removing party no longer in such state court.’’ As with the Separa-

needed the assent of the state judge to ble Controversies Act, Congress enlarged

remove the action; he had merely to file federal jurisdiction to protect the adminhis petition for removal in the federal istration of justice by providing an imparcourt. The court would then issue its writ tial forum to litigants when the state of certiorari to the state court, a writ courts proved inadequate or obstructive.”

which emphasized the inferior status of By 1875 congressional Republicans’

the state court. Any persons taking partin = }ymanitarian concern for the freedmen

state proceedings after such removal, was nearly spent. The flourishing eco-

including the judge, were made guiltyofa = ygmic development of the postwar years misdemeanor and triable for contempt in —_—Jeq most Republicans to substitute sym-

the court to which the action had been _pathies for entrepreneurial interests in

removed. | | place of their earlier care for the freed-

Congress enacted the Separable Contro- men. It was no accident that the most versies Act of 186618 to get around an old important later use of removal jurisdicdecision of Chief Justice John Marshall, — tion redounded to the benefit of business-

Strawbridge v. Curtis,!9 which required men and corporations rather than that all parties on one side of a suit have Negroes. Congress abandoned its suspicitizenship different from all parties on cions of southern courts and concentrated

the opposite side in order for federal its attention on the midwestern courts and courts to take the suit on removal under legislatures infected with Granger resenttheir diversity jurisdiction. Canny resi- ment toward eastern capitalists.‘

dent plaintiffs in southern-state courts The im tusf t tof supposedly abused the Strawbridge rule @ PMDOTES NF ehactment OF a COMpre-

. a qe ge hensive removal statute in 1875 was proand stymied federal removal jurisdiction . ; ; ee , | vided in a negative way by the United by joining a nominal resident party to the | States Supreme Court. OnTo March real and ,nonresident defendant. stop3,| 1874, ,in. the | . the court handed down its decision this, Separable Controversies Act perSow} ; 35 . aqtheewing Machine Company Cases,?5 holdmitted the nonresident defendant to 4s ; | ing that under the Local Prejudice Act and remove the action againstControversies him to the fed-Act ; a party ; ; the Separate eral court, leaving the remainder of the ;; fedvesin ) ;the ,; could not remove an entire of suitthe to .the suit state court, if that portion Gj . eral courts if to onehim of the parties on the controversy that pertained could mys .. . . ; : opposite side lacked diversity. The Jurisbe finally decided in the federal court. as 46 , astatute . diction and Act of 1875° perThis was the first whichRemoval permitted . . mitted any party to remove; reversed the

parties to split a cause of action, leaving Sewing Machine Company Cases and

part in the state court and bringing authorized removal of the whole suit if

another part to the federal court. In the _the real controversy was between diverse long run, this splitting greatly increased parties; allowed removal of all diversity

the business of the federal courts.° actions, whether or not one of the parties

Southern hostility to nonresident liti- lived in the forum state; and, most imporgants was also the occasion for the Local tant of all, permitted removal of all federal Prejudice Act of 1867.2! The original ver- question suits. Section 1 of the act made sion of the bill, in fact, was limited in its analogous changes in the original juris-

application to “‘states lately in insurrec- diction of the lower federal courts. The tion.”’22 This limitation was dropped, and lower federal courts were at last given the act as passed permitted either party to original and removal jurisdiction as broad a suit in a state court anywhere in the as the Constitution authorized.

nation to remove by filing an affidavit Senator Matt Carpenter (R., Wis.) “stating that he has reason to, and does explained at length the motives of the


The Reconstruction of Federal Judicial Power

Senate Judiciary Committee in reporting except the Supreme Court, and then only out such an expansive bill. In 1789, he in aid of its rarely invoked original jurisstated, extensive federal jurisdiction was diction.?9 The federal courts did not have not needed because the nation’s com- power to supervise the rulings of the state merce was small and waterborne; but in courts by habeas corpus. A person on trial 1875, it “crosses the continent; our people in a state court depended completely on have become vitally changed in their the states for the protection of his rights methods of doing business.” To accom- guaranteed by the federal Constitution; he

modate this changed commerce, the had no recourse to the national courts by ,

former railroad attorney noted, required habeas corpus.

an expansion of the jurisdiction of the fed- The First Congress did not delay in giveral courts.?” Congress, it would appear, ing the federal courts habeas jurisdiction, was determined not to let the particularist but its jurisdiction grant, section 14 of the

animosities of state court judges and 1789 Judiciary Act, was niggardly.3° The juries impede the national market. most crippling part of section 14 was conThe second major accretion to federal tained in its proviso “that writs of habeas judicial power came with section 1 of the corpus shall in no case extend to prison1867 Habeas Corpus Act. Not only did ers in gaol, unless where they are in cus-

this statute expand the power of the tody, under or by colour of the authority

courts; it changed the nature of the Great of the United States, or are necessary to be

Writ itself. Before 1867, habeas corpus brought into court to testify.” | was principally a means of testing the This proviso meant that the federal writ legality of confinements by executive could not reach the man held under the authority. After the 1867 act, the writ order of a state court. No matter how out-

became a means of reviewing judicial rageous the violation of his rights under

confinement; appellate courts took on the Constitution, no matter how emphatpower to determine whether lower courts ically he was protected by federal laws, a acted properly when they deprived a man man in the grasp of the state courts could

of his liberty. not be pried out by federal habeas corpus.

More controversial, then and now, was By 1860, federal habeas power was thus the shift of power embodied in the 1867 narrowly circumscribed. The Great Writ act. Before 1867, the courts of the nation could not be used in any court to review and the states were insulated from each an order of a jurisdictionally competent

other in habeas corpus matters by the old tribunal; it was exclusively a pretrial

maxim that habeas corpus cannot be used remedy used to test confinement by execas a writ of error. Habeas corpus could not ~— utive order. Within the American federal

call into question the judgment of a juris- system, the national courts could not use dictionally competent court. Under the the writ as a means of liberating prisoners 1867 act, however, federal courts got the held under the authority of the state. Both power to review the judgments of state these restrictions were swept away by the courts, even after these had been affirmed Habeas Corpus Act of 1867. After a cenby the state supreme courts. The salvos of tury of judicial development of the 1867

the controversy this brought on thun- act, the Great Writ has become a procedered for nearly a century; their echoes dural device for reviewing convictions

resound today. | | after trial in courts which had jurisdiction The Constitution did not set the bounds of the person and the subject matter, and

of the federal courts’ habeas powers; it it has been used by federal courts to

dealt only with the reasons for suspend- supervise the administration of justice in

ing the writ.28 The courts therefore State courts.

depended entirely on Congress for their The origins of the 1867 Habeas Corpus

habeas powers; without statutory authori- Act may be traced to Republican concern zation no court could issue the Great Writ for the condition of southern freedmen.


William M. Wiecek

As a means of enforcing the Thirteenth habeas petition as coming up under the Amendment, Representative James F. 1789 Judiciary Act provisions rather than Wilson (R., Iowa) introduced a bill “to — the 1867 act, and granted the writ.3* The secure the writ of habeas corpus to per- __ effect of the Yerger decision was to nullify sons held in slavery.’’31 In the House Judi- — the impact of the McCardle repealer as far

ciary Committee, Wilson’s bill was as federal (not state) prisoners were conreplaced by a new two-part bill and — cerned. In 1885, after the passions of reported out. Section 132 of this substitute | Reconstruction had subsided, Congress

bill provided that federal courts and restored the McCardle-type jurisdiction it judges could grant a writ of habeas corpus __ had excised in 1868.3? Thus the 1867 act,

‘in all cases where any person may beres- _ less than two decades after its passage, trained of his or her liberty in violation of | was restored to its full force.

the Constitution, or of any treaty or law of The McCardle episode proved to be

the United States.” only a temporary diversion from the The newborn statute nearly suffered |§ mainstream of habeas development in the

infanticide a year later, when the United nineteenth century. The Great Writ States Supreme Court announced that it emerged as a post-conviction form of

would take jurisdiction in a habeas appeal relief. State resentment of federal review, of one William McCardle.33 McCardle was smoldering since Cohens v. Virginia and

a Mississippi editor awaiting trial by a Martin v. Hunter’s Lessee earlier in the military commission; a federal circuit century, flared up again as persons concourt had refused his petition fora writ of | victed in state courts sought relief in the

habeas corpus, and he appealed this federal courts. Partisans of the state judi-

refusal to the Supreme Court. Democrats ciary came to realize that the 1867 act conin Congress assumed that the Court was tained no limitations on collateral review

about to hold the military reconstruction by federal courts of state court convicacts of 1867 unconstitutional. This possi- tions, and they denounced this ‘“‘abuse’’ bility, unreal though it appears in retro- vociferously in law journals and petitions

spect,34 thoroughly frightened con- to Congress.*°

gressional Republicans, and they The Court lent a sympathetic ear to

responded by repealing as much of the those who complained that the dignity of 1867 act as would authorize the United state courts was abased by having convicStates Supreme Court to review a lower tions, some of them affirmed by state _ federal court’s disposition of a habeas supreme courts, overturned by lower fedpetition.25 Supporters of the ‘“McCardle eral courts by habeas petitions. It began repealer,”’ as it has been called, were at narrowing the sweep of the 1867 act by pains to point out that the repealer did not formulating the ‘‘exhaustion’’ doctrine of affect previous grants of habeas jurisdic- Ex parte Royall,*1 by which federal courts tion; but they did not have quite enough may require that a would-be habeas peticandor to admit that the bill was designed tioner first be tried by the state courts or

merely to keep McCardle out of the exhaust his appeals through the state

Supreme Court.*° court system before federal courts grant The court accepted the repealer and dis- collateral habeas review. This was done to

missed McCardle’s petition, but it passed give the state courts an opportunity to a useful hint on to counsel, reminding pass on the merits of the case before the them that the federal habeas jurisdiction, federal courts step in. except for the 1867 act, remained unaf- The Supreme Court’s new restrictive _ fected by the repealer.37 The hint was mood was further evinced in In re Wood, taken up by attorneys for Edward M. where the court instructed lower federal Yerger, a Mississippian who had been courts not to retry the merits of federal

arrested by the army for killing an army constitutional questions raised in a officer. The court accepted Yerger’s habeas petition under the 1867 act unless


The Reconstruction of Federal Judicial Power

the state court lacked jurisdiction of per- inequitable to use sovereign immunity as son or cause.*? This holding, in apparent a cloak for evading just obligations. Hence

conflict with congressional intent in pass- they had experimented with various ing the 1867 act, nevertheless suited the devices for processing claims against the

new mood of hostility toward federal federal government. review. By emphasizing the one desidera- Between 1789 and about 1820, Con-

tum of finality in litigation, the court gress made claims determination pri-

sacrificed another, that of full judicial marily the reaponsibility of the executive protection for individual constitutional branch of the government by funneling

rights. claims through the Treasury Department It appeared by 1900 that the expansive and, after the War of 1812, through an ad

possibilities of the 1867 act had been hoc administrative commission which severely curtailed by judicial surgery. processed claims growing out of the

Aside from its use after conviction, habeas war.*> Beginning sometime in the 1820s

corpus had not wrought any drastic and extending to 1855, Congress took on

changes in the federal system. Yet the act itself the power of adjudicating claims remained in the Revised Statutes, its through its committees.4¢ The workload potential dormant but surviving the of the committees was so time-consumwinter of judicial ‘‘conservatism’”’ in the ing, however, that Congress was forced, in

late nineteenth century. It was revived the mid-fifties, to turn to a quasi-judicial dramatically in the 1920s by a bare major- body to handle claims adjudication.

ity on the court that insisted that federal Congress was impeded in its efforts to courts should retry factual issues which, work out a claims procedure before and if proved, deprived the petitioner of fed- during the Civil War by two principal eral constitutional rights.43 This began a considerations, one practical and one contrend, culminating in several post-World stitutional. The latter stemmed from the War II cases, toward realizing the full seventh clause of Article I, section 9: ‘“No promise of the 1867 act by permitting fed- Money shall be drawn from the Treasury, eral courts to review the merits of all fed- but in Consequence of Appropriations eral constitutional questions arising in a made by Law.” The practical difficulty

state court trial.*4 was simply that Congress did not want to relinquish its control of the national purse

Reconstruction Congresses enhanced strings to some extralegislative body it

the role of the federal courts in the area of could not control. Both difficulties ham-

economic regulation in two_ principal pered the establishment of a court of ways: by creating a Court of Claims hav- claims during the war and Reconstrucing jurisdiction over claims suits against tion.

the sovereign and by enacting a bank- By 1855, the time wasted in claims

ruptcy statute to be administered by the committees had become intolerable to federal courts. In both cases, the federal congressmen, and they tried to rid themcourt system took on broad new powers to selves of the unwelcome burden of claims implement national policy respecting the processing by creating a ‘‘court”’ to decide

country’s transportation network and claims.*7 But their reluctance to part with other aspects of the national economy. the power they exercised over claims, The problem of providing justice, both together perhaps with scruples about the procedural and substantive, to persons constitutionality of a wholly independent who had a claim against the United States judicial body whose judgments would had plagued Congress ever since 1789. have to be honored by the Treasury, led Because the national government was a them in the next year to refuse finality to sovereign, it could not be sued unless it the judgments of the court.4® Successful waived its sovereign immunity; yet con- plaintiffs in the claims court still had to gressmen always had felt that it would be have Congress authorize appropriations


William M. Wiecek | for their judgments, unsuccessful ones power to revise the judgments of the

still had their resort to Congress despite court, a considerable shift of power from an adverse judgment. It was this unsatis- the supposedly hostile Congress to the factory structure that still operated when supposedly intimidated federal courts. the Civil War broke out. It became obvious Regulation of the railroad system was that Congress would soon be inundated an unexpected bonus of the Bankruptcy

with war claims. : Act of 1867. That relatively short-lived President Lincoln, in his first annual statute (it was repealed in 1878) marks

message,*? called on Congress to set up a another major increment of power passed claims court whose judgments would be on to the federal courts by Congress in the

final, but Congress did not get around to Reconstruction era. , doing so until 1863. Then it reorganized Earlier attempts at providing the federal , the court of claims and tried to give final- courts with power to supervise insolvenity to its judgments by authorizing them cies had failed. The Bankruptcy Law of

, to be paid out of general appropriations 1800,53 a creditor-oriented statute which

made for that purpose, rather than by spe- failed to satisfy its intended beneficiaries,

cific appropriations. At the end of was repealed in 1803.54 The 1841 Bank-

_ debates, an opponent of finality, Senator ruptcy Act, a Whig measure, inade avail-

John P. Hale (R., N.H.) inserted an amend- able the procedure of voluntary

ment to the bill which provided that no bankruptcy, and broadened the powers of claim could be paid until it had been federal courts in supervising the adminis“estimated for’ by the secretary of the tration of bankrupts’ estates. Democrats, treasury. With this amendment, the bill southerners, and even creditors were dispassed and the modern Court of Claims satisfied with the actual workings of the

made its debut.5° | act, and it too was repealed within two The new court, naturally, did a boom- _years.55 The failure of both statutes indiing business, and it seemed that all doubts cated that any national bankruptcy legisabout its constitutional status as an Arti- lation would have to appeal to all sections

cle III court and the finality of its judg- of the country and to both creditor and ments had been laid to rest. Hence the debtor interests. During the Civil War 1865 holding of the Supreme Court in practical pressures for a new bankruptcy

Gordon v. United States came as a shock act came as a result of business failures everywhere. In a brief and opaque opinion caused by the cancellation of southern the new chief justice, Salmon P. Chase, indebtedness and the depreciation of curstated that the authority given to the sec- rency, North and South, as well as from retary of the treasury to ‘“‘revise’”’ the deci- widespread financial failures in the South

sions of the Court of Claims denied the because of the war. These pressures

court Article III judicial status. As a result, brought about the enactment of a third appeals could not be taken from it to the federal bankruptcy statute in 1867.°¢

United States Supreme Court. Chase’s The 1867 Bankruptcy Act permitted holding left the Court of Claims in exis- voluntary as well as involuntary

tence, but its decisions were by implica- bankruptcies. Federal district courts were tion not necessarily binding on Congress made ‘‘courts of bankruptcy’? and were

or the Treasury.5! - again given the quasi-equitable jurisdicCongress immediately repealed the sec- tion of bankruptcy in all cases involving a tion of the 1863 act that Chase had found __ bankrupt’s financial affairs, the interest of

objectionable, emphasizing its original his creditors in his property, or the prop-

intention that the Court of Claims be an _ erty itself. Appeals from the district courts authentic Article III court.52 By preserving were provided to the circuit and Supreme

the right of appeal from Court of Claims courts. This new bankruptcy statute decisions to the United States Supreme added considerably to the volume of cases |

Court, Congress necessarily gave up its in the federal courts.57


The Reconstruction of Federal Judicial Power

To the routine bankruptcy business of today the basis of our national bankruptcy the federal courts there was soon added a legislation. novel function: the supervision of railroad The traditional picture of a vindictive

_ Teorganization. | Analogous in most and ruthless Congress intimidating a respects i contain bankruptcy proceet supine judiciary during Reconstruction is ings, Tallroac reorganization came 0 derived from a few exceptional scraps of occupy a major part of the time of certain historical evidence exaggerated by partidistrict courts. Railroad-receivership suits san historians. The seeds of fact in this soon became jquast- permanent, proces husk of fiction are occasional proposals to "ew. ate q duty of a rea d management abolish the Supreme Court’s appellate

se | : On, contemp ; 8

WO } ;oroe gsof .its ; a ; jurisdiction to stripqe the Court

Roo aD oe anetilany ina dent end an power of judicial review, together with equity suit. Receivership was not con- eral appellate review, the McCardle ined ics ae estimated that “the longer repealer. Of these, two things should be

ve ; . 1 one successful attempt at trimming fed-

portion of all the railroads in the country noted. First, the amputation in McCard e are 1 a condition which would justify [fe- surgical knife. Congress did not withdraw deral courts] waa placing them in the hands all habeas review, but only a small portion

of TeCelvers. Receivership ane railroac of it recently conferred. This was far from reorganization were seconnns ° apies i being an “emasculation” of the Supreme

the end of Reconstruction. _ im Le ee The 1867 act was repealed because of Second, the proposa's to ane lish judicial

the business of the lower federal courtsby = Gaunt as a recent writer has termed it.©

sectional and interest-group opposition. tf oh not ant no don No wat suc uch | one, but for done whatb was done.

Nineteenth-century bankruptcy laws had ’ ,

sway afalionating those whom they were Proposal rceived the approval of either

intended to benefit. Some northern credi- ora 8 tors felt the act was too lenient on south-

ern debtors. Southerners and westerners The scope of federal judicial authority voiced their instinctive fears of federal was broadened for the most part at the

courts and national laws providing for the expense of the states. State court determicollection of debts. The voluntary bank- _ nations affecting a person’s federal constiruptcy provisions seem to have been most tutional or statutory rights were made unpopular in the South and West, while reviewable by the federal bench. Whole northeastern creditors disliked the invol- categories of cases could be, and were, untary provisions, areaction the opposite — taken out of the state judicial systems of what one might have expected. Credi- entirely. This was a consequence of the

pr y

tors demanded bigger dividends and nationalizing process of Reconstruction: a

more protection; they complained of strong federal bench assured the domi-

frauds and high fees.59 President Grant nance of the federal government over the

recommended repeal of the act in 1878, states. ,

and Congress soon complied.© But the The federal judiciary emerged from the need for national bankruptcy legislation turmoil of reconstructing the Union tri-

was obvious; it was apparent that if the umphant, vigorous, conscious of its defects of the 1867 act could be ironed power, and willing to exercise it exuout, a national bankruptcy law became berantly in the decades to come. This every day more necessary with the expan- reconstruction of federal judicial power

sion of American commercial activity. proved to be one of the most important

The 1898 Chandler Act omitted most of and most lasting legacies of

the flaws of the 1867 act and remains Reconstruction.

Charles W. McCurdy

Justice Field and the Jurisprudence of Government-Business Relations: Some Parameters of Laissez Faire Constitutionalism, 1863-1897

The institutional and economic growth of | ments became “convinced that they had American society through the mid-nine- not gotten their money’s worth” and reputeenth century entailed close cooperation diated their indebtedness; finally, state

between the public and private sectors. legislatures resolutely moved to divest Antebellum state and local politicians corporations of the valuable special grants _ viewed government’s resources as a that preceding policy makers had _ barmeans to attain the developmental goals gained away.* The simultaneous emerof a society dedicated to material growth; gence of regulation, repudiation, and public officials were more than willing revulsion against corporate privileges “to seek the public good through private threatened a multitude of vested interests negotiations.”’! State legislatures char- on an unprecedented scale. Thus, as Jus-

tered hundreds of corporations and tice Stephen J. Field put it in 1890, postlavished them with land grants, lottery Civil War constitutional controversies franchises, eminent-domain privileges, ‘“‘exceed[ed], in the magnitude of the

and tax exemptions.” Local governments, property interests involved, and in the too, engaged in the scramble for regional importance of the public questions predevelopment and readily opened their sented, all cases brought within the same

treasures to railroad corporations and [short] period before any court of other businesses.? By the 1870s, however, Christendom.’’5

various socioeconomic groups began to The Supreme Court, armed with an _ perceive that their interests were no enlarged jurisdiction and three new conlonger congruent with those of the cor- stitutional amendments as a result of the porations that government had created Civil War, had both the power and the

and subsidized. In that decade, shippers opportunity to forge new doctrine and fix waged successful struggles to impose stiff new boundaries between the public and regulatory laws on grain warehousemen private sectors. In the ensuing thirty-year and railroad companies; local govern- _ jintra-court debate on how to use those

aReprinted powers, and for what purposes, Field was from Journal of American History, 61 a pivotal figure. He sought to persuade his (1975), 970-1005, by permission. Copyright, 1975, colleagues to use all the Court’s powers,

Organization of American Historians. “broadly and liberally interpreted,’ to



Justice Field and the Jurisprudence of Government-Business Relations

“close the door... on the introduction of subject to regulation.’ As a result, litigaimproper elements to control’ the legisla- tion resulting from regulatory statutes

tive process and to ‘‘draw the line involved a reconsideration of governmen-

between regulation and confiscation.’’’ tal interventions on the promotional side, He was remarkably successful. The post- and vice versa. Thus, ‘if one regarded Civil War Court reconsidered the scope of each case as though it came up spontan-

the states’ police and eminent-domain eously and in isolation, one would fail to , powers, restricted the range of policy grasp the great underlying problems’”’ that tools government might employ to subsi- the justices perceived. dize private businesses, and imposed new What follows in this essay is a reconsi-

limitations on government’s power to reg- deration of the parameters and underlying ulate prices. The outcome was a constitu- rationale of Field’s jurisprudence on both tional revolution that set the legal basis of sides of the promotional-regulatory congovernment-business relations upon an tinuum. The first part focuses on his sig-

entirely new footing. nal contributions to American property

Field’s historical reputation largely law and reappraises the court’s crucial stems from his role as ‘‘pioneer and Fourteenth Amendment opinions on govprophet” of a substantive interpretation of ernment’s police and eminent-domain the Fourteenth Amendment.® Since the powers. New light is cast upon Field’s court often invoked the due-process concerns in the Slaughterhouse Cases — clause to “stave off adverse regulation,”’ concerns that subsequently spilled over historians have relentlessly marched to into corporation law generally, and conthe conclusion that Field was a mere trolled his position in cash subsidy and handmaiden for ‘‘business needs’’ who regulatory controversies. The second part believed that ‘“‘protection of economic offers a new view of Field’s convictions privilege was government’s one excuse vis-a-vis ‘‘economic privilege.’’ Here, for being.’?® By focusing on regulatory postbellum developments in contract issues alone, however, scholars get a dis- clause law are mapped out to delineate torted view of Field’s government-busi- Field’s role in the formulation of the ness jurisprudence. Regulatory agitation important but neglected “public trust” emerged at the very time that state and doctrine, which ultimately relegated local governments were also repudiating Fletcher v. Peck to the ‘‘status of a judicial internal-improvement bonds and divest- relic.’’!2 In the third part, a line of docing corporations of tax exemptions, lot- trinal continuity is traced linking Field’s tery rights, and other special grants. All |= landmark dissents in the Granger Cases to

the ensuing controversies involved judi- earlier court rulings on eminent-domain, cial consideration of the legitimacy of municipal-bond, and exclusive-privilege governmental interventions in economic questions. Along this route, one discovers

life, and all resulted in significant doc- that Field’s jurisprudence was neither

trinal innovations — not only under the ‘cut from the same bolt of cloth’ as Wilnewly adopted Fourteenth Amendment liam G. Sumner’s Social Darwinism, nor a but also under the contract clause and the product ‘‘of the Gilded Age with its Great inchoate “public purpose’? maxim. More- Barbecue for the Robber Barons and for over, the convergence of litigation on the rest — ‘let the public be damned’ ”’13 these several questions was especially Instead, one finds that Field shaped his important in that at common law regula- government-business jurisprudence to tory and promotional legislation were provide “‘final’’ solutions to the manypart of a single doctrinal continuum. Pri- faceted, “great underlying problem”’ of vate businesses that had been granted spe- the 1870s: government’s legitimate role in

cial privileges by state and local American economic life. The final prodgovernments did not hold their property uct was an extraordinarily consistent

by ‘common right’ and were therefore body of immutable rules designed to sepa-

248 , ,

Charles W. McCurdy

rate the public and private sectors into erty could only be expropriated “in exe-

fixed and inviolable spheres. cution of works in which the public is interested.’’!8 Railroads and other public-

The fundamental theorem of Field’s utility concerns might take property at

government-business jurisprudence was administered prices because ‘“‘the public derived from the Jacksonian, radical antis- at large’ could use the facilities by right, lavery precept that under ‘‘the declaration “not as a favor,” and government might

of 1776” each individual had a natural protect the public’s interest in those :

right “to pursue the ordinary avocations _ businesses by enacting appropriate legisof life without other restraint than such as lation, including ‘‘public regulations as to effects all others and to enjoy with them __tolls.’’19 Purely private firms had to make

the fruits of his labor.’ The Fourteenth land purchases in the marketplace, for Amendment, he periodically asserted, “the right of eminent domain nowhere

was “undoubtedly intended” to protect _ justifies taking private property for a priboth the title to a person’s property and vate use.”2° Thus Field indicated that takhis liberty to dictate its use and ‘“‘enjoy” ings under the eminent-domain power its income.'5 This was anovel proposition —_ were ‘“‘proper matter[s] for judicial cogni-

in American constitutional law, if not in zance.’’2!

social theory, and it exerted a profound The court’s dicta pertaining to the

impact on government’s role in economic ‘public use”’ limitations on the eminentlife through the third decade of the twen- domain | power were merely reassertions

tieth century.*¢ | of doctrine that was well-established in

, Field conceded that state governments the states.2? In Pumpelly v. Green Bay and had certain inherent powers that neces- § Mississippi Canal Co., however, the court

sarily subjected property rights to a reappraised and modified a long line of

_ degree of public interference. The states — state court decisions on the just compencould regulate the use of property inorder sation provision.?? Before the Civil War, to protect the safety, health, and morals of ‘‘the nagging scarcity of fluid capital’’ that the community — in short, to exercise the —_ had initially led to governmental promo-

police power. Government might also tion of private corporations also take a portion of a person’s property by encouraged the state courts to develop

way of taxation for the support of govern- _—_ legal doctrine that reduced the costs of mental operations or local improvements. doing business.”* Indirect legal subsidies

Finally, the states could provide public were an especially prominent feature of improvements — gas and water works, eminent-domain law. The several state highways, railroads, and the like — and courts so narrowed the definition of a might employ the power of eminent “taking”’ that railroad and canal compadomain on behalf of those ends. Thus nies had to pay compensation only to perproperty might be taken for public use — sons who had been forced to give up title upon payment of just compensation. All — to their property. As a result, landowners these powers, however, might be abused —_ whose crops and buildings were flooded

by government, and therfore Field sub- or otherwise damaged in the course of

jected each of them to important and transport construction had no legal essentially coextensive constitutional remedy.25 The word ‘‘take’’, Pennsyl-

limitations. - vania’s Chief Justice John Bannister GibNineteenth-century eminent-domain son explained in a widely followed

law was primarily a state matter, and the —_ opinion, ‘“‘means taking the property alto-

Supreme Court of the United States gether; not a consequential injury which played ‘‘only an occasional, and mainly is nota taking at all.’’6

validating, role in support of the state In Pumpelly the court dealt a decisive

judiciaries’ initiatives.”17 The Court did, blow to the ante-bellum state judiciaries’ however, often reiterate that private prop- ‘“seneral disposition not to cramp these

, 249

Justice Field and the Jurisprudence of Government-Business Relations

[growth-inducing] enterprises by a too oly was part of that city’s ‘‘organic plan”’ sweeping or extreme compensation.’’?7 In to secure control of the Texas cattle that case, a canal company had raised the trade.3! In order to take full advantage of height of its dam on a Wisconsin lake, its locational superiority, city boosters which had the unintended effect of flood- advocated both railroad expansion and ing the farm of an adjoining landowner. the construction of efficient slaughtering Speaking for a unanimous court, Justice facilities that could withstand the com-

Samuel F. Miller held that: petitive pressures imposed by packers in

OS St. Louis and Chicago. New Orleans com-

It would be a very curious and unsatisfactory mercial interests ultimately succeeded in result, if in construing a provision of consti- procuring the exclusive grant, as the Loui-

- tutional law, always understood to have siana Supreme Court later observed, by been adopted for protection and security to “corrupting and improperly influencing the rights of the individual as against the members of the state legislature.”3? But government [just compensation clau- the statute conferring the monopoly also ses]. shall be held that if the government threw hundreds of meatcutters out of

refrains from the absolute conversion of real work. The unemployed butchers claimed

property to the use of the public it can that the state legislature had divested

_ destroy its value entirely, can inflict irrepa- them of valuable constitutional rights, rable and permanent injury to any extent, while counsel for Louisiana defended the can, in effect, subject it to total destruction measure as a police regulation designed without making any compensation, because, to protect the public health. In 1873 the in the narrowest sense of the word, it is not ensuing litigation evoked the court’s first

taken for the public use. Such a construc- construction of the Fourteenth tion would .. . make it authority for invasion Amendment. of private right under the pretext of the pub- Field’s associates probably concurred lic good, which had no warrant in the laws with his assertion that the alleged public-

or practices of our ancestors.2® health rationale of the enactment was a

| , “shallow... pretence’ for an “odious

Indeed, in Field’s view, the property monopoly.’’33 Nevertheless, a narrow

right entailed the right to use and enjoy- — majority upheld the statute on the ground ment as well as formal title, and therefore that the Fourteenth Amendment had not

the plaintiff's right to compensation was been designed to make the court ‘‘a perunquestionable. But Field was prepared petual censor upon all the legislation of to go further and, in slightly modified the states.’’54 Field dissented. He con-

form, extend the narrow “public use”’ and ceded that slaughterhouses had long been

broad ‘“‘taking’’ docrines of eminent- considered prima facie nuisances, and he domain law to the police power as well. insisted that state legislatures might altoThe celebrated Slaughterhouse Cases gether prohibit butchers from plying their

came up from Louisiana at a time when noxious trade in densely populated

northern ‘‘adventurers’’ and old-line cities.35 But in his view, the state’s duty to

southern Whigs had ‘‘become convinced protect the people from unhealthful that the same industry and commerce businesses could not ‘possibly justify”’

which had transformed the North would legislation framed ‘‘for the benefit of a sinrevolutionize the South.’’?? During the gle corporation.’’3° Field was particularly

late 1860s virtually all the southern states concerned with the implications of embarked on massive programs of public Thomas Durant’s brief for the state of aid to railroads, and, simultaneously, Louisiana, in which it was argued that a

major marketing centers made desperate state legislature might make any business attempts to recapture commercial hege- ‘the exclusive privilege of afew... if the mony in ‘natural’? hinterland zones.?° sovereign judges that the interests of soci-

The New Orleans slaughterhouse monop- -__ ety will be better promoted.’’3’ Field flatly


, Charles W. McCurdy stated that Durant’s position had no sup- ‘‘ordinary trades’’ was ‘‘in many port in the common law. The only busi- respects...°a distinguishing feature of

ness firms which might be granted our republican institutions.’’45 In his

exclusive privileges, he asserted, were view, the Fourteenth Amendment would

those that held “franchise of a public become a ‘‘vain and idle enactment,

character appertaining to government.’’38 which accomplished nothing’”’ if the court

The classic examples were hackmen, continued to permit the state legislatures wharfingers, bridge proprietors, and ferry to “farm out the ordinary avocations of operators. Those businessmen could not life.’’46 And while Field stubbornly mainengage in their calling by common right tained his position, he kept his colleagues because they required special easements aware that, on the whole, they shared the in the public streets or public rivers and, same values and convictions. The strategy

as quid pro quo for the government’s of dissent and persistence, aided by grant of privilege, public officials might changes in the court’s composition, ultiprescribe “the conditions under which it mately succeeded. In 1886 the major com[the franchise] is enjoyed.’’39 Railroad and ponents of Field’s Slaughterhouse Cases

other public-utility corporations had dissent received the approbation of the

assumed similar liabilities to the public court.47 by dint of exercising eminent-domain Even as Field persuaded his associates -powers.*° The meat-cutting business, to adopt a substantive interpretation of _ however, was a purely private, ‘‘ordinary the Fourteenth Amendment, he became trade.” As a result, Field contended, it alarmed at the bar’s ‘apparent misconcep- __ had to be open to all persons ‘“‘without tion’”’ of his views.*8 In the zeal of dissent

other restraint than such as effects all Field had indeed maintained several

others.’’4! Thus, in his view, the Louisiana implausible positions, had cited such statute ‘‘present[ed] the naked case, unac- dubious authorities as Adam Smith’s companied by any public consideration, Wealth of Nations, and had given the where a right to pursue a lawful and nec- impression that he was an advocate of

essary calling, previously enjoyed by unrestrained individualism. But after

every citizen ... is taken away” in contra- 1874, Field tried to make it clear that he venton of the Fourteenth Amendment.*? recognized the states’ police power “‘in its

Field’s vigorous defense of the fullest extent,’ and he was in fact pre-

| butcher’s right to pursue his calling unfet- pared to accord state governments considtered by state-sanctioned monopolies, if erable policy discretion.4? He upheld not by “legitimate”? police regulations, statutes that prohibited certain businesses

cannot be considered idiosyncratic. altogether as detrimental to the public

Field’s colleagues, although not prepared welfare, recognized government’s right to

to “proclaim the faith that was in him prescribe standards of fitness for lawyers both in season and out... shared [it] none and doctors, and sustained legislation the less.’’43 Indeed, the North had just fin- that required railroad corporations to ished fighting a war that, in Abraham Lin- erect cattle guards and eliminate grade coln’s words, was a “‘people’s contest... crossings at their own expense.>® Morefor maintaining in the world that form over, Field acknowledged the several and substance of government whose lead- states’ authority to improve the condition ing object is to elevate the condition of of ‘“‘the poor and dependent”’ classes of

man; to lift artificial weights from all society, including ‘‘ the laborers in our

shoulders; to clear the paths of laudable factories and workshops’; hence he readpursuit for all; to afford all men an unfet- ily affirmed laws that prescribed maxi-

tered start and a fair chance in the race of mum working hours or compelled life.’44 Thus Field was not being pre- employers in hazardous businesses to sumptuous when he claimed that the compensate workers who were injured on individual’s right to pursue one of the the job.51 The court would invalidate


Justice Field and the Jurisprudence of Government-Business Relations

police regulations, he asserted in Soon suffered] is compensated by sharing in the , Hing v. Crowley, only ‘“‘when persons advantages arising from such beneficial engaged in the same business are sub- regulation.’’®

jected to different restrictions.’’5? So- Field did make it clear, however, that called special legislation was not government’s police regulations had to unconstitutional merely “because like provide ‘general benefits.’’ Under “the restrictions are not imposed upon other pretense of prescribing a police regulabusinesses of a different kind.’’53 Field, tion,’’ government could not create mono-

then, provided government with ample polies in the “ordinary trades;’’ solve

room to give ‘‘the under fellow a show in unemployment problems by forbidding this life.’’5+ Eight years after he retired, Chinese laborers to work for railroad comhowever, the court invalidated a maxi- panies; or provide dairy interests with a

mum-hour law for New York bakery protective umbrella by proscribing the

workers.*> But in the process the majority manufacture and sale of oleomargarine.® ,

had to disregard the rule Field had Field contended that those laws, ‘‘as dis-

handed down in Soon Hing, which ‘“‘was closed on the face of the act, or inferable precedent, in order to draw support from from their operation,” manifestly ‘‘discri-

his [Slaughterhouse Cases] dicta... minated against some [persons] and

which was not precedent.’’5* Indeed, if favored others.’’** Since men had propField’s landmark dissents ultimately erty rights in their occupations, statutes of became the ‘‘fountainhead’’ of the dubi- that variety effectively took the property ous “liberty of contract” doctrine, it was | of one class of persons and vested it in - because “another generation” of jurists, another, private group.® In other words,

with entirely different concerns, Field imposed limitations on the police

_ wrenched Field’s principles out of their power, not to protect individuals from

original context.>” enactments designed to ‘‘promote... the

Field also held that although health and general good,” but rather to prevent powsafety measures invariably “‘lessen[ed] the erful socioeconomic interests, through the

value of the property affected,’ govern- use of corruption or the force of sheer ment was not required to compensate numbers, from utilizing the legislative property owners who had sustained pecu- process as a weapon to improve their own niary losses.5? Takings under the emi- position at the expense of other individunent-domain power were compensable, als’ ‘just rights.’’°¢ In his view, this was a even if government “‘refrain[ed] from the proper judicial function. As in eminent-

absolute conversion of real property to the domain law, only the courts could deter- | use of the public,’’ because the individ- mine whether public policy actually ual’s property was necessary either for the ‘‘car[ied] out a public purpose.’’®’

public work itself or, as in Pumpelly, as Field’s crusade to fix a precise boundan easement for ‘‘water, earth, sand or ary between private rights and legitimate other materials.’’>9 But the police power governmental interventions also entailed stood on a different footing. Police regula- a reconsideration of ‘public purpose’”’ tions impaired property rights because, as doctrine in taxation law. By the 1870s, Justice Joseph P. Bradley put it, “‘the prop- this was a particularly muddled area of erty itself is the cause of the public detri- American jurisprudence. The legal con-

ment.’’®° In Field’s view, this was a vital troversy stemmed from the public’s distinction. Effective takings under the clamor for internal improvements, espe-

police power were justifiable, he declared cially rail connections, which after 1840

in Barbier v. Connolly, because ‘‘special had resulted in state laws authorizing burdens are often necessary for general local governments to commit themselves benefits.’’®! So long as the public did not to stock purchases and outright gifts to make positive use of private property, the privately owned businesses. In the East courts would ‘‘presume he [who thereby and Midwest, ante-bellum local politi-


Charles W. McCurdy , cians had been mesmerized by booster- the “ordinary trades’ would bring manuism. Between 1840 and 1880 the nation’s facturing, hotel, and dry-dock companies aggregate local indebtedness leaped from into the same vortex of hostile govern-

$25 million to $840 million, much of mental regulation that was simultan-

which flowed into the coffers of private eously threatening railroad corporations.

- corporations.°® During the 1860s and Field, however, believed that persons

1870s, however, local officials from New engaged in the “ordinary trades’ had a

York to Iowa recognized that they had natural right, consistent only with the

overestimated both their power to influ- _health and safety of others, to dictate the

ence rate structures and their ability to use and “enjoy” the income of their service enormous public debts. Thus a property unfettered by governmental wave of repudiation, and bondholder interference. As a result, he concluded

- guits to enforce the contractual obliga- — that it was up to the judiciary to establish tions of local governments, coincided an inviolable boundary — equally applic-

with the emergence of regulatory able for eminent-domain, exclusive privi-

agitation.®9 - , lege, subsidy, and regulatory purposes — The cycle of promotion, repudiation, that would distinguish purely private and regulation frightened investors and businesses from those that executed profoundly disturbed the conservative | works in which the public had an inter-

community.” What must have been most _ est.

unsettling to Field was the fact that in The state courts, however, only conmuch of the South and trans-Mississippi tributed additional uncertainty to the

West the same process was still in its | existing, unstable state of affairs. In over formative stages. Moreover, as one _ twenty jurisdictions, the state judiciaries scholar has observed, ‘‘the Western prov- required defaulting communities to

inces’’ were even more ‘‘creative in adhere to contractual obligations

devising techniques to abet their own incurred on behalf of railroad developself-exploitation’’ than their eastern ment.74 Jurists in Michigan and Wisconbrethren had been.7! In Kansas, forexam- sin, however, refused to provide ple, local governments not only granted remedies for bondholders. Judge Thomas subsidies to railroad companies but also M. Cooley, the influential author of Conby 1874 had appropriated over two mil- stitutional Limitations (1868), was the lion dollars to aid such “‘ordinary trades’ leading advocate of the latter position.

as hotel and manufacturing establish- Speaking for the Michigan court in an ments.7? The politics of economic policy 1870 bondholder suit, Cooley held that a

were particularly chaotic in Wisconsin. railroad was “exclusively private propDuring the 1870s, communities in the — erty, owned, controlled, and operated by southeastern portion of the state had both a private corporation for the benefit of its repudiated their indebtedness and forced own members’; as such, it was ‘‘not disa regulatory law through the state legisla- tinguishable from any other’ variety of ture. At the same time, representatives private enterprise and therefore was not a from the undeveloped northern counties legitimate recipient of public subsidies.75 not only opposed regulation but also suc- The Wisconsin court reached the same ceeded in enacting a statute authorizing conclusion only months afterward.’® At

local aid to railroads, dry-dock compa- the very time that midwestern legisla-

nies, manufacturing firms, and steamship tures were enacting statutes to protect the

companies.73 For Field, these were omi- public’s interest in rate matters, then,

nous developments. He was well aware influential jurists were ruling that

that private firms that had feasted upon railroads were ‘“‘exclusively private” for : government’s largess were, by the same tax purposes. The state courts’ response token, subject to regulation. Thus judicial to the convergence of regulatory and provalidation of public-sector cash grants to motional issues, Charles Francis Adams,

, 253

Justice Field and the Jurisprudence of Government-Business Relations

Jr., lamented in 1870, ‘‘furnishes a very use of “general jurisprudence’’ principles

curious illustration of the extreme diffi- to protect bondholders. Three factions culty which... now attends any attempt within the court can be identified. Chief to definitely fix legal principles.”’’” Field Justice Salmon P. Chase and Justices

concurred. — Miller and David Davis generally disSince diversity of citizenship could sented on the ground that the court usually be established, some three- lacked authority to overrule state court

hundred municipal-bond cases came up decisions when bona fide federal ques-

during Field’s tenure on the court. Two tions had not been raised.®? Justices Nelof the more important cases were Olcott son, Nathan Clifford, Noah H. Swayne, v. Supervisors of Fond Du Lac County Bradley, and Strong (later joined by Mor(1873) and Pine Grove Township v. Tal- rison R. Waite, Ward Hunt, and Harlan)

cott (1874), which came up from Wiscon- stubbornly resisted every form of sin and Michigan, respectively, in the railroad-subsidy repudiation. Those men

years immediately following state court were, Miller commented, “if not monorulings that public aid to railroads was maniacs, as much bigots and fanatics on unconstitutional. In each case, the court that subject as is the most unhesitating refused to affirm the state’s ‘‘public-pur- Mahemodan in regard to his religion. In pose” doctrine. The court would follow four cases out of five the case is decided state decisions on “local questions pecu- when it is seen by the pleadings that it is liar to themselves,” Justice Samuel Nel- a suit to enforce a contract against a city, son asserted in Pine Grove Township, but or town, or a county. If there is a written

‘‘here, commercial securities are instrument its validity is a foregone con-

involved’? and therefore the issues clusion”’.84 In the majority’s view, contin-

“belong to the domain of general juris- ued economic growth necessitated

prudence.’’78 The court held that the pub- vigorous judicial protection of bondholdlic’s interest in railroad expansion was ers. “‘Within the last few years,’’ Nelson undeniable: ‘‘Where they go they animate wrote in White v. Vermont & Massachuthe sources of prosperity, and minister to setts R. R. Co., ‘‘large masses of... [mun- ©

the growth of the cities and towns within icipal bonds] have gone into general the sphere of their influence.’’7? More- circulation and in which capitalists have over, Justice William Strong contended invested their money.” If the court then in Olcott, railroads were ‘‘public high- denied their negotiability, the instrumenways’ even when constructed and tal value of such securities ‘‘as a means of owned by private persons. Their ‘uses furnishing the funds for the accomplishare so far public that the right of eminent ment of many of the greatest and most

domain... may be exerted to facili- useful enterprises of the day would be

tate... construction” and that had “been impaired.’’§5 the doctrine of all the courts ever since Field’s views were unique. Before the such conveniences for passage and trans- convergence of promotional and regulaportation had any existence.’’®° The con- tory issues during the early 1870s, he clusion was inexorable, Strong declared, was not certain that local promotion of that public funds might be given as sub- railroad expansion was legitimately sidies and ‘“‘tolls and rates for transporta- “within the objects to be accomplished”’

tion might [also] be limited’’ by public by municipalities.26 Moreover, he was

officials. §1 deeply troubled by the corruption and

The court’s municipal-bond decisions opportunism that pervaded the local-aid exerted a salutary effect on American process; when entrepreneurs and _ local money markets by restoring confidence politicians conspired to thrust massive in an important class of commercial tax burdens on unsuspecting citizens, he paper.8? But the bench divided on the consistently voted against the rights of legitimacy of the court’s heavy-handed bond holders. Thus he often joined the


Charles W. McCurdy

dissenters.8” Olcott and Pine Grove set by government — for the city’s grant, Township came up, however, at a deci- and the people’s tax monies could not

| sive moment in the development of ‘be used for purposes of private interest

Field’s jurisprudence of government- instead of public use.’’®? “To lay with business relations and dictated a reeval- one hand the power of government on uation of his position vis-a-vis municipal the property of the citizen, and with the repudiation of internal improvement other to bestow it upon favored individubonds. By then the Slaughterhouse Cases als to... build up private fortunes,’ he

had been argued, and he was well into asserted, “‘is none the less robbery

the process of formulating his notion of because it is done under the forms of law “public use’’ or ‘public purpose’’ with and is called taxation.’’?°

- respect to the extent of the states, police Field was undoubtedly pleased that and eminent-domain powers. Railroad Miller had invoked concepts and corporations had been granted eminent- employed language that closely condomain privileges; hence they were formed to his Slaughterhouse Cases disclearly not “‘ordinary trades.’ As a result, sent. Nevertheless, he recognized that a

Field joined the majority in both Olcott gap remained between their respective and Pine Grove Township. In his view, positions. For Miller, who had written the need to formulate universal rules the majority opinion in the Slaughterdetermining the legitimate range of pub- house Cases and had filed virulent dislic interventions in economic life took sents in the leading railroad subsidy precedence over the immediate conse- cases, the decisive aspect of Loan Associquences his position involved, even if it ation was that it had come up from a fed-

entailed the exploitation of local govern- eral court on a subject for which

ments by railroad corporations or irrepa- pertinent state law had not been formurable damages to bondholders. For Field, lated. Thus he spurned the due-process

once the character of the use had been clause altogether and held that the

fixed, it was immutable and applied to Topeka “robbery” violated ‘‘principles of

all governmental interventions. At stake general constitutional law.’’9! More

in the subsidy controversies, then, was importantly, Miller declared that “it may not only government’s promotional dis- not be easy to draw the line in all cases cretion but also the legitimate scope of | so as to decide what is a public use in the public sector’s regulatory powers. this sense and what is not.’’°? By declinUnder Field’s “public use” doctrine, it | ing to hand down a firm rule specifying was axiomatic that local governments ~ the exact boundaries of the “public use’”’ had no authority to grant cash subsidies doctrine, the court retained discretion to to businessmen engaged in the “ordinary include or exclude particular fact situatrades.’’ The Court considered one such _ tions as new controversies arose. But that

instance in the leading 1874 case of Loan _was precisely what Field feared. And Association v. Topeka.8® Through a vig- four years later he stood in lone dissent orous promotional campaign involving a = when the court upheld payment of subsihundred-thousand-dollar subsidy, the dies to mill owners. The majority, speak-

citizens of Topeka had lured the nation’s ing through Hunt, believed that ‘‘it largest manufacturer of wrought-iron would require great nicety of reasoning”’

bridges to their city. Subsequently the to define a public use such that it

city repudiated its indebtedness, and included “‘a gristmill run by water, and

with only Clifford dissenting, the Court exclude [d] one operated by steam; or... ruled that the bondholders’ contract with [showed] that the means of transportation Topeka was not enforceable. Speaking for were more valuable to the people of the majority, Miller held that the general Kansas than the means of obtaining , public had not received a consideration ' bread.’’*3 Field did not write a dissenting — the right to use the facilities on terms opinion, but he was almost certainly pre-


Justice Field and the Jurisprudence of Government-Business Relations

pared to make the ‘“‘nice’’ distinction the legislative abuse of private rights. Beginmajority had dismissed. Owners of grist- ning with the leading case of Fletcher v. mills driven by waterwheels held “‘fran- | Peck, the Marshall Court held that once chises of a public character’ in that they government had granted land, perpetual

had flooded adjoining land under the tax exemptions, or corporate charters to several states’ mill acts. Steam-powered private groups, the state could not there-

mills were ‘ordinary trades’? and, in after take away those privileges.°* Most

Field’s view, could neither be subjected importantly, John Marshall indicated that to governmental control nor be recipients it was not ‘‘within the province of the of public subsidies. He believed that doc- judiciary” to take notice of corruption or trine separating the public and private examine the mischievous effects of legissectors had to be immutable if it was to lative grants in determining their validbe effective. As a result, Field refused to ity.°> ““‘We have no knowledge of any condone any deviation from his syllogis- authority or principle,” Justice Joseph

tic version of the “‘public use’’ concept, Story announced in Terrett v. Taylor, even when he was required to stand ‘which would support the doctrine thata _ alone in order to maintain a consistent legislative grant is revocable in its own

position. nature.’’9°

Field’s exposition of the constitutional The Marshall Court’s construction of limitations on the exercise of the states’ the contract clause became a crucial inherent powers — police, taxation, and “link between capitalism and constitu-

eminent domain — was uncommonly _ tionalism” during the formative years of systematic. Indeed, Field would have nineteenth-century economic developreduced the legitimate bounds within ment.°? Nevertheless, Marshall’s views which the police and taxation powers | were subjected to significant modifica-

might be exercised to embody the emi- _ tions in the ante-bellum era. First, in , nent-domain constraint of “public use.” | Dartmouth College, Story suggested in a By applying the body of rules that logi- concurring opinion that the states might

cally flowed from the ‘‘public use’”’ doc- insert special clauses in corporate

trine, Field assumed he could charters reserving to themselves the

mechanically maintain a viable separa- |§ powers of amendment and repeal. Most tion of public-sector and private-sector states quickly availed themselves of this activities. This is the stuff of laissez faire. | practice, and by mid-century it was an But Field’s principles carried him still accepted feature of American corporation further. If individuals had natural rights | law.°® Then two decades later in Charles which required constitutional protection River Bridge v. Warren Bridge, Chief Jus-

from the vagaries of government, so too tice Roger B. Taney held that the court did the states have certain social duties | would thereafter strictly construe corwhich, according to Field, correct consti- porate charters.?? In practical application,

tutional doctrine recognized as inalien- this doctrine meant that corporate privi-

able, inherent powers. leges and immunities not expressly granted by the legislature were retained

Before the Civil War, judicial concern by the state. |

with the reconciliation of private rights Taney’s approach to the contract clause

and governmental powers largely reflected his concern for the course of

focused on the protection of rights vested American economic development. He in private corporations by state legisla- feared that if the court chose to presume tures. Therefore, Article I, section 10 of that legislative grants embodied exclu-

the Constitution, which provides that sive privileges, it might discourage

‘no state shall pass any law impairing investment in new and competing forms the obligation of contracts,’ was by far of enterprise.1°° But there were other the signal constitutional limitation on judicial concerns that made strict con-


Charles W. McCurdy struction of corporate charters particu- scrutinize the substance of special legis-

larly appropriate at a time when lative grants. In his view, corporations

legislatures served as ‘‘annexes to the were not created to extort special privimarketplace.’’!°1 Speaking for the court leges from the states, nor were governin Ohio Life Insurance & Trust Co. v. ments instituted to dispense their several

Debolt, Taney declared: , | attributes of sovereignty to the highest | bidder. Thus he concluded that the For it is a matter of public history, which Court’s proper function was to “close the

this Court cannot refuse to notice, that door... on the introduction of improper almost every bill for the incorporation .. . is elements to control’ the legislative drawn originally by the parties who are per- process and ensure that unwarranted sonally interested in obtaining the charter; grants, made against implicit public poland that they are often passed by the legis- icy, were not enforced. 1°

lature in the last days of its session, when, F ield had some support in precedent from the nature of our political institutions, for his antagonism to sweeping grants of the business is unavoidably transacted in a special immunities. In the leading case of hurried manner, and it is impossible that West River Bridge v. Dix, the Court held every member can deliberately examine that the property of a corporation, includevery provision in every bill upon which he ing its very franchise, might be taken for

is called on to act. public use under the power of eminent

On the other hand, those who accept the domain, even if that corporation had earcharter have abundant time to examine and lier exercised that power. The sovereign _ consider its provisions, before they invest power of eminent domain was inalien-

their money.?° | able. Into all contracts, Justice Peter V. Daniel asserted for the majority, ‘‘there

Field agreed. He occasionally referred enter conditions which arise not out of

to the economic rationale of the strict- the literal terms of the contract itself; construction rule, but he believed that they are superinduced by the preéxisting the doctrine primarily served ‘‘to defeat and higher authority of the law of nature, any purpose concealed by the skillful use of nations, or of the community to which of terms, to accomplish something not the parties belong.’’!°© Field was preapparent on the face of the act, and thus pared to apply this principle to all the

[it] sanctions only open dealing with states’ essential powers. If the states

legislative bodies.’’1°3 Field, however, could not divest themselves forever of was prepared to extend Taney’s position their power of eminent domain, he con-

further and restrict the application of tended, their powers of taxation and

Fletcher v. Peck. He believed that “open police and their ownership and control of

dealing’ alone had failed to arrest the