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

Table of contents :
Frontmatter
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

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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

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Preface

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

1X

Preface

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

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Contents

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

Xl

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 ,

Xill

Contents

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

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American Law and the Constitutional Order

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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

2

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

4|

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

s)

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-

6

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

7

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

8

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

9

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

11

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

15

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.

16

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.’’??

17

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,

18

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

19

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

21

, 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

22

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-

23

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

25

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

28

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 ,

30

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

31

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

32

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

33

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

35

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-

36

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

37

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

40

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

41

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

42

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

43

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

44

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

45

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

47

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-

48

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

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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

51

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

52

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

55

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-

08

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-

99

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

60

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

62

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-

63

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-

64

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,

65

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 |

68

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 ,

70

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

71

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

72

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

73

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

76

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-

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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

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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-

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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

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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

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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-

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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 ...as 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

86

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-

90

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

92

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

93

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-

94

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

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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

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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

97

, 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

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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

100

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.?®

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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

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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

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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

105

, 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-

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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

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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

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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

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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

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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

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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-

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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

4115

| | 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

116

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

117

, 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

118

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

119

, 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,

120

, 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

123

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

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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

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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

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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-

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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

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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

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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

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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

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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

133

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-

134

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

135

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

136

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

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‘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

138

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

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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

140

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

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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

143

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

144

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

145

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-

147

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

152

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

155

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

156

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- _

157

| 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-

158

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

159

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,

160

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

161

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.

a BLANK PAGE |

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

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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-

167

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

168

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- ,

170

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

171

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

172

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

175

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-

176

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,

177

, 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-

178

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

179

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

180

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 movements.in- 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).

181

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

182

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.

183

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

185

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

190

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

192

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

193

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-

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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-

195

, 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,

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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,

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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-

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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

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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

BLANK PAGE

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 |

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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

203

sion of Alfred A. Knopf, Inc. thing...

204

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

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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-

206

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.”’

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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

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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

212

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

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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

214

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

216

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-

218

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

220

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

221

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.

222

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

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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

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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 ...in 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

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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

228

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

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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

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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-

231

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

232

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

233

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

234

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

236

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.

238

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.‘

240

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

241

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.

242

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

243

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

244

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

245

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

246

247

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]. ..it 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

250

, 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

251

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-

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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

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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-

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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-

256

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 the navigable waters within their respecbaneful effects of the private quest for tive political jurisdictions were to no less special privileges. Adept lobbyists still a degree inalienable.1°7

might persuade policymakers to waive Tax immunity controversies swelled future powers of amendment and, as Jus- the Court’s docket during the 1870s. tice John A. Campbell put it, the Court’s Throughout the antebellum period, state

construction of the contract clause made legislatures had granted growth-inducing the judiciary “‘the patron of such legisla- private interests special tax concessions

tion, by furnishing motives of incalcu- as a stimulus to development. Policy lable power to the corporation to stimu- measures of that variety were particularly

late it, and security to the successful popular among politicians because no effort.’”’1°4 Field contended that, since the direct allocation of public funds was nec-

Court had, in fact, taken notice of the tur- essary.!°8 Nevertheless, the suspicion bulent resource-allocation process, there persisted, doubtless with some justifica-

was no reason why it should not also tion, that the source of tax-immunity

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Justice Field and the Jurisprudence of Government-Business Relations

grants lay in “‘careless or corrupt legisla- its debts, on those who are too poor or too ture[s]’’ rather than enlightened public honest to purchase such immunity.!4 policy.1°° As a result, when developmental goals had been fulfilled and mid- Indeed, Field believed, as he later indidle-class groups began to complain about cated in the Income Tax Case, that partial

high taxes, public officials invariably and unequal tax laws effectively transwaged concerted campaigns against cor- ferred property from one socioeconomic

ruption and corporate privilege and group to another in contravention of the

attempted to reassert the power earlier fundamental precept that property could legislatures had bargained away.!!° The not be taken for private use.145 | summary repeal of special tax immuni- Despite the setback in Rousse, Field ties was particularly threatening to the ultimately succeeded in modifying the

fifty-five railroad companies that by 1870 relative position of corporations and the had secured tax exemptions worth some public sector in tax-immunity controver-

thirteen million dollars from at least sies. Speaking for the court in two leadnineteen states.111 The result was a flood ing cases handed down in the 1870s, of litigation in which corporations confi- Field held that once business corporadently argued that their position was tions changed hands on sale of execution impregnable: in New Jersey v. Wilson, or were consolidated such that the origithe Marshall Court had already brought nal concerns had forfeited their status as

tax immunities within the protective distinct corporations, all franchises and umbrella of the contract clause. 11 privileges not ‘‘essential to the operation

Few of Field’s colleagues shared his of the corporation,’’ including tax

belief that Wilson was not good law. In immunities, might be revoked by state

their view, any ruling by the Court that legislatures.11© Moreover, the Rousse distended to undermine a leading case or senters’ unrestrained advocacy of govern-

impair the sanctity of contracts would ment’s inherent power to tax mobilized give an unnecessary shock to the eco- substantial support both in the legal pronomic system.!13 Thus in Home of the fession and on the state benches. In vir-

Friendless v. Rousse, with only Field, tually every state, jurists refused to Miller, and Chase dissenting, the court uphold the validity of tax immunities.1?’

vigorously affirmed Marshall’s_ tax- Thus private interests were required exemption decision. The dissenters, either to expend large sums of money on

speaking through Miller, filed an uncom- appeal or bargain with state authorities promising critique of doctrine that sus- who were often prepared to offer alternatained government’s right to bargain tive, though less valuable, concessions as

away its essential powers. The power to quid pro quo for giving up perpetual

tax, Miller declared, exemptions.!18 State pressures, combined with the Court’s propensity to invoke all _ is a power which, in modern political socie- doctrinal weapons short of reversing Wilties, is absolutely necessary to the contin- son, effectively destroyed vested rights in

ued existence of every such society... To special tax concessions. By 1890 the hold, then, that any one of the annual legis- question was of little importance as a latures can, by contract, deprive the State practical matter or a legal issue. forever of the power of taxation, is to hold Field met less resistance in establishthat they can destroy the government which ing the inalienability of the police power.

they are appointed to serve... The tyranny of established constitutional

The result of such a principle, under the doctrine was not a factor, as in the tax growing tendency to special and partial leg- exemption cases, and ‘“‘vested rights in islation, would be, to exempt the rich from liquor, lottery tickets, gambling, and sex

taxation, and cast all the burdens of the never appealed much to nineteenth censupport of government, and the payment of tury judges.’’!19 The leading cases came

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Charles W. McCurdy

up from the South during Reconstruc- Field’s development of the ‘public tion, when policymakers had employed trust’”’ doctrine and the simultaneous erothe age-old technique of stimulating cap- sion of Fletcher v. Peck reached their ital formation by grants of lottery privi- apogee in the leading 1892 case of Illileges.12° The giant southern lottery nois Central R. R. Co. v. Illinois.1?> In corporations, particularly the infamous 1869 the state of Illinois conveyed to the Louisiana State Lottery Company, were railroad corporation, as part of a larger notoriously corrupt and often ‘‘exercised grant, title to the submerged lands along a power greater than that of the State — the entire Chicago waterfront. When the government itself.’’121 As ‘redeemer”’ state sought to repossess the property, governments acquired power, they gener- Illinois Central balked, and its attorneys

ally revoked the charters of those con- attempted to restrain state action by cerns, thereby precipitating litigation. invoking the contract clause. Field,

In Boyd v. Alabama, an agent for a speaking for a narrow majority, held that

state-chartered mutual-aid association the contract authorizing the original

had been convicted of selling lottery tick- grant could not be enforced. The state ets in violation of the state’s antilottery had no right, he declared, to grant away law. The 1868 charter of the company, in perpetuity lands covered by the navihowever, not only explicitly granted it gable waters of the sovereign. Navigable the right to carry on a lottery, but the lakes and rivers were ‘“‘public highways”’ state had also failed to include any provi- which the state held in trust for the use sion for amending the twenty-year grant of all shippers and carriers.12© Thus the of privilege. Thus Boyd claimed that the state could make grants of them only for statute was void insofar as it applied to purposes of constructing wharves, docks,

his activities, because it impaired the and other aids to commerce, and then

state’s obligation of contract. The court only to the extent that they did ‘‘not subactually resolved the issue by referring to stantially impair the public interest in the antilogrolling provision in the Ala- the water remaining.’’!?7 The principle bama constitution. The act of incorpora- permitting limited grants for public benetion and the grant of lottery privileges fit, Field concluded, were embraced in the same statute, vio-

lating the prohibition of laws involving is a very different doctrine from the one

more than one subject. Nevertheless, in which would sanction the abdication of the his opinion for the court, Field explained general control of the state over the navigathat he was ‘‘not prepared to admit that it ble waters of an entire harbor or bay, or of a is competent for one legislature, by any sea or lake. Such abdication is not consis-

contract with an individual to restrain tent with the exercise of that trust which

the power of a subsequent legislature to requires the government of the state to prelegislate for the public welfare, and to serve such waters for the use of the public. that end to suppress [by the exercise of The trust devolving upon the state for the the police power] any and all practices public, and which can only be discharged tending to corrupt the public morals.’’!?2 by the management and control of property

In Stone v. Mississippi, the court in which the public has an interest, cannot refused to provide contract-clause protec- be relinquished by a transfer of property.178

tion for a lottery corporation on the in-

alienability doctrine alone.123 The in- It was preposterous, Field contended, alienability of the police power, Field re- that ‘‘a corporation created for... iterated in 1884, “is a principle of vital [railroad] purpose[s]’’ could be “‘conimportance,”’ because ‘“‘its habitual obser- verted into a corporation to manage and

vance” by the state “is essential to wise practically control the harbor of the City and valid execution of the trust commit- of Chicago, not simply for its own pur-

ted to the legislature.’’124 pose as a railroad corporation, but for its

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Justice Field and the Jurisprudence of Government-Business Relations

own profit generally.’’!29 To allow such a “broadly and liberally interpreted,’ Field

grant was to concede that the public and believed the court could proscribe virprivate sectors had common interests. tually every form of special privilege. But, as his several references to ‘‘manage- The result would be a harmonious sysment,’ ‘‘purpose,’’ and “profit” indi- tem in which the public and private sec-

cated, Field believed that public and tors pursued appropriate goals within private institutions had diametrically proper spheres of action. But an all-

opposed reasons for existence; legislation encompassing separation of the public that vested public property in private and private sectors was impossible. Cer-

corporations would invariably lead to sit- tain businesses, though private in owneruations in which the people would be ship, were public in ‘‘use.’”’ Thus much of

subject to private greed, Thus, in his Field’s judicial energy was expended in view, the court had to “‘meet the very formulating rules fixing the areas in suggestion of evil, and strike down the which the public might lawfully inter-

contract from its inception.’’12° vene in the affairs of private businesses

The fact that Field was willing summa- and the extent to which any such interrily to divest a major American corpora- ference would be a violation of property

tion of exceedingly valuable property rights.

should be viewed as more than a legal curiosity. In his version of the American The concept of businesses ‘‘affected system, there was room for neither cor- with a public interest,” a major constituruption and special privilege nor a self- tional doctrine for over half a century, denying spirit of largess on the part of was born in the 1877 case of Munn v. Illigovernment, and his ‘‘radical’’ opinions nois.!32 Deriving its doctrinal reasoning on the ‘public trust’? doctrine were an from the seventeenth-century treatises of integral part of his larger vision of gov- Lord Hale, the court held, as Justice Bradernment-business relations under the ley explained a year later in the Sinking Constitution.151 On the one hand, he Fund Cases, that ‘‘when an employment enjoined the several state legislatures to or business becomes a matter of such

refrain from exercising their “trinity of public interest and importance as to

powers”’ — police, taxation, and eminent create a common charge or burden upon

domain — so as arbitrarily to transfer the citizens; in other words, when it

property rights from one socioeconomic becomes a practical monopoly, to which group to another. On the other hand, the citizen is compelled to resort, and by

Field reprimanded legislatures that means of which a tribute can be exacted

would contract away the right to exercise from the community, it is subject to reguthose very powers and, except in the case lation by the legislative power.’’!53 Grain of tax-immunity grants, succeeded in warehousemen, Chief Justice Waite wrote

persuading his associates that the states’ for the majority, “stand... in the very

inherent powers were “held in trust’ for ‘gateway of commerce’ and take toll from

the public and therefore inalienable. all who pass”’’: and therefore ‘‘exercise a What he attempted to take from govern- sort of public office’? comparable to that ment with one hand he sought to restore enjoyed by wharfingers, ferry operators,

with the other; the doctrine Field handed hackney coachmen, and railroad down in Illinois Central R. R. Co. v. IIli- corporations. 134

nois demonstrates in disarming propor- Field dissented. In his view, the affec-

tions the degree to which he was tation doctrine, as employed by the

committed to upholding powers which, majority, was a contorted misapplication in his view, fell on the public side of the of Hale’s precepts. According to Field, line. By enlarging judicial cognizance of when Hale had suggested that property the consequences of ill-considered public might cease to be juris privati, that is

policy and exercising all its powers, when it ceased to be held by private

260

Charles W. McCurdy , right, he referred to “‘property the use of the property which creates the public which was granted by the government, or interest in it.”157 But the public had no in connection with which special privi- interest whatsoever in slaughterhouses

leges were conferred.’’135 But the firm of and grain elevators. There could be no Munn and Scott was a partnership. It legal monopoly because such firms could

held no corporate charter, and it had not lawfully exercise governmental

been granted no special privileges. The powers or privileges, and there could be firm’s property, then, had never ceased to no ‘‘practical monopoly,” and hence no be juris privati, and there was no legiti- rationale for regulation, because no spe-

, mate rationale for regulation. cial privileges were held and therefore Field’s position in Munn did not stem, anyone might take up the calling. Munn

however, from a careful reading of Lord and Scott had been engaged in the

Hale. Instead, his construction of ‘“‘practi- “ordinary trades’ only. In that instance, cal monopoly” and ‘‘affected with a pub- reasonable prices might be determined lic interest” had been carefully worked only by normal market mechanisms.

out four years earlier in the Slaughter- “The great difficulty in the future,” —

house Cases. “It is also sought to justify Chief Justice Waite commented shortly the act in question,” Field had asserted after Munn was handed down, “will be to

in that case, establish the boundary between what is

, , private, and that in which the public has

on the same principle that exclusive grants an interest. The elevators furnished an for ferries, bridges and turnpikes are sanc- extreme case and there was little diffitioned. But it can find no support there. culty in determining on which side of the Those grants are of franchises of a public line they properly belonged.”1%* Indeed, character appertaining to the government. the Chicago warehousemen not only

Their use usually requires the exercise of stood ‘‘in the very gateway of comthe sovereign right of eminent domain. It is merce,’ but also had collusive lease for the government to determine when one agreements for the use of railroad rights of them shall be granted, and the conditions of way; hence they were, in fact, “practi-

under which it shall be enjoyed... The cal monopolfists].439 But in Munn, as in grant, with exclusive privileges, of a right Illinois Central R.R. Co. v. Illinois, Field

, thus appertaining to the government, is a was concerned with high policy rather very different thing from a grant... of a then with the outcome of one particular right to pursue one of the ordinary trades or © controversy, and the “‘great difficulty” to

callings of life, which is a right appertain- which Waite referred molded his dissent-

ing solely to the individual.13° ing opinion. In his view, there was sim-

ply no way for the court to uphold the

a | grain-elevator statute without opening

In order to fulfill a public purpose, the door for any combination of interest then, special privileges, including exclu- groups, through the “magic... [of] lan-

sive monopolies or cash subsidies, might guage,” to change an unpopular “‘private be conferred on corporations that neces- business into a public one’”’ and leave its sarily employed powers “appertaining to owner ‘‘at the mercy of a majority of the government.”’ Moreover, the governmen- legislature.’’14° ‘‘There is hardly an enter-

tal character of those businesses sub- prise or business engaging the attention

jected them to legislative control of ‘‘the and labor of any considerable portion of conditions upon which” the franchises the community,’ he remarked, ‘‘in which might “be enjoyed.” ‘“‘The recipient of the public has not an interest in the sense

the privilege,’ Field explained in Munn, in which that term is used by the

“stipulates to comply with the condi- court.”’!41 Yet Field believed that the exitions” set by government, and “it is the — gencies of the turbulent 1870s required public privilege conferred with the use of the judiciary resolutely to perform its

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Justice Field and the Jurisprudence of Government-Business Relations

“main purpose, namely, that of setting “We know that it is a power which may

metes and bounds to legislative be abused; but that is no argument

power.’’!42 The Granger Laws and public against its existence. For protection vacillation — first subsidizing private against abuses by legislatures the people

enterprises, then repudiating the bonded must resort to the polls, not to the indebtedness incurred — had thoroughly courts.’’!46 Justice Bradley had anticidisrupted the nation’s economy.!*3 More- pated and described the rationale behind over, regulatory agitation and the ensu- this dictum two years earlier in Balti-

ing clash of regional and functional more & Ohio R.R. Co. v. Maryland. The interest groups had increased at the very states’ power to fix rates charged by time that governments in the trans-Mis- transport firms, he asserted, ‘‘in its very

sissippi West and in the South had nature is unrestricted and uncontrolled”’ increased their promotion — through because of ‘‘the simple fact that they are cash subsidies and exclusive grants — of its own works, or are constructed under otherwise ‘‘ordinary trades.’’ In the its authority.’’47 State legislatures, BradSlaughterhouse Cases, Loan Association ley explained a decade later, had a v. Topeka, and Munn, however, the court “duty” to provide transport facilities for

had failed to make a firm distinction the convenience of the public. When a

between private businesses and those in railroad corporation was chartered, govwhich the public had an interest. The ernment only empowered it to act “‘as an court’s decisions, Field indicated, would agent of the State for furnishing public encourage further ill-advised interven- accommodation.” Therefore, it was the tions in economic life, perpetuate the legislature’s “‘prerogative to fix the fares inordinate instability that had character- and freights which they may charge for ized the early 1870s, and necessitate con- their services. When merely a road or a tinuous debate as to which businessmen canal is to be constructed, it is for the engaged in purely private concerns and legislature to fix the tolls to be paid by

which ‘“exercise[d] a sort of public those who use it; when a company is

office.’”” The mechanical public-use doc- chartered not only to build a road, but to , trine, however, had been designed to carry on public transportation upon it, it

restore stability by resolving for all time is for the legislature to fix the charges for

_ the era’s pressing policy questions on such transportation.’’48 According to

both sides of the promotional-regulatory Bradley, and probably the entire Granger continuum. Through the end of his long Railroad Cases majority, then, a railroad career, Field continued to believe that the corporation was no different from a state-

majority had committed a grave error owned canal or publicly operated toll and, as Justice Harlan noted, he periodic- road; hence the legislature might fix rates ally turned “‘his face towards the setting of carriage at its discretion.

sun, wondering... whether the Munn Once again Field dissented. He con-

case or the eternal principles of right and —_ ceded that transport firms were devoted

_ justice, [would] ultimately prevail.’’1*4 to ‘public use,” and he recognized that The court’s decisions in the Granger state legislatures had generally reserved Railroad Cases flowed logically from the the power to alter rates fixed in corporate

principles articulated in Munn.145 charters.149 As a result, he admitted that Railroad corporations were “affected the states’ power to regulate transport tarwith a public interest’? and therefore iffs was incontrovertible. What he could might be regulated at the discretion of | not accept, however, was the court’s conthe legislature. ‘“‘The controlling fact,”’ tention that railroad corporations were

Waite wrote for the majority, “is the | mere ‘‘agents of the State.” In his view, power to regulate at all. If that exists, the the majority had converted private con-

right to establish the maximum of cerns with public duties into wholly pubcharge... is implied.’’ And he added, lic corporations. That position, Field

262

Charles W. McCurdy

contended, was neither good policy nor How Bradley and Waite, who had good law. The public’s interest in joined the majority in the land-grant

railroads necessitated the mobilization of case, reconciled government’s “unresprivate investment capital, and the state tricted and uncontrolled” discretion to of railroad credit wholly depended upon fix rates with the right of railroad corcertainty of return. But investors could porations to refuse carriage without comnot be attracted, and economic growth pensation is unclear. But for Field, the

perpetuated, if their property was difference was only one of degree. As a

entirely at the mercy of hostile legisla- result of the pervasive, rancorous conflict tures.45° Thus Field contended that the among merchants, farmers, and railroad court’s clear duty was to ‘define the companies during the preceding decade. limits of the power of the State over its Field had imbibed a profound distrust of corporations... so that, on the one hand, the legislative process. Thus he was readthe property interest of the stockholder ily convinced that greedy shippers had would be protected from practical confi- fixed rates “without reference to the scation, and, on the other hand, the peo- expenses of the carriage, or the obligaple would be protected from arbitrary tions incurred in the construction of the and extortionate charges.’’!5! Field must roads.”’'54 In the Wisconsin rate cases, have been most upset because only one however, the state court had held that year earlier, in Lake Superior & Missis- even if tariffs fixed by the legislature sippi R.R. Co. v. United States, Bradley diminished income below costs, the judi-

had drawn just such a line in hold- ciary could not provide a remedy, and

ing that railroad corporations had certain the court, by remanding the companies to

rights in their property which the pub- the polls, had implicitly sustained the

lic could not take without just Wisconsin court’s assertion that a com-

compensation. 15? pensable ‘‘taking’’ necessitated ‘‘approIn 1864 Congress granted land on the priation by the state itself, for its own public domain to the state of Minnesota use... of the whole thing confiscated.”

to be conveyed, in turn, to the Lake Supe- 155 That doctrine, however, ignored the

rior and Mississippi Railroad Company crucial transformation of the property as a bounty for the construction of a “‘first right which the court had, in Field’s

class” line. The statute contained the fol- view, brought to fruition in Pumpelly v. lowing provision: ‘‘The railroad shall be, Green Bay & Mississippi Canal Co.1°° If,

and remain a public highway free from indeed, rates had been fixed such that

all toll or other charge [upon] the trans- carriage was required without remuneraportation of any property or troops of the tion, then the stockholders’ track and United States.”” Federal attorneys liber- rolling stock, like the property of land-

ally construed the act to mean that gov- owners in ‘‘consequential’’ eminent-

ernment shipments were to be domain takings, had been effectively

transported toll-free by the company. The taken for the public’s use without com-

corporation demurred, filed suit in the pensation. Moreover, Field contended, United States Court of Claims and, after rate regulation was not analogous to losing there, appealed to the Supreme health and safety measures for which Court of the United States. Speaking compensation need not be paid even if through Bradley, a narrow majority sus- the value of property had been dimintained the railroad’s contention that the ished.157 By regulating railway tariffs, government had to pay the company for government did not destroy property

the cost of its services. The word ‘‘public because it was detrimental. Instead, the highway,” Bradley declared, ‘cannot, public made positive use of the regulated without doing violence to language... property. In that instance, Field asserted, be extended to embrace the rolling-stock ‘if the constitutional guaranty extends or other personal property of the railroad no further than to prevent a deprivation

company.’’453 of title and possession, and allows a

263

Justice Field and the Jurisprudence of Government-Business Relations

deprivation of use, and the fruits of that collateral to, the corporate franchise. use, it does not merit the encomiums it The Court divided, however, on the

has received.’’158 application of that doctrine to cases in

Field did not reject the Court’s position which government asserted the right to in the Granger Railroad Cases on emi- alter maximum rates fixed in the dated

nent-domain analogies alone. He charters of railroad and other public-ser-

believed that his approach to regulatory vice corporations. The Granger Railroad

questions was also deeply rooted in Cases majority ruled that the contract

American corporation law and consti- clause was inapplicable and held that the tuted a logical application of contract- only “controlling fact is the right to regu-

clause doctrine the Court had handed late at all.” Field, however, contended down during the early 1870s. Speaking that, although the states might regulate for a unanimous Court in Tomlinson v. the rates charged by businesses that Jessup, Field had conceded that a state ‘held franchises of a public character,”’ legislature might amend corporate the policy makers’ discretion was limited charters if a specific reservation retaining by the established principle that ‘‘no that power had been inserted in either amendment or alteration of the charter the act of incorporation or the constitu- can take away the property rights which tion of the state. He had added, however, have become vested under a legitimate that ‘‘rights and interests acquired by the exercise of the powers given.’’!® In his company, not constituting a part of the view, if a public-service corporation were contract of incorporation, stand upon a required ‘‘to take as compensation” rates

different footing.’’159 which were ‘less than the expenses’’

For Field, then, franchise privileges which the company had incurred in might be altered or revoked altogether; building and operating the road, the

but the state retained control only over stock and bondholders would be

what it granted. Contractual agreements deprived of property “as effectually as if and corporate property made or acquired the legislature had ordered its forcible in the exercise of the charter privileges dispossession.’’1®3 But Field dissented, were collateral to the grant of incorpora- not because the several railroad corporation and could not be impaired or taken tions had conclusively shown that prop-

without compensation. Insofar as _ the erty rights of stockholders had been

property of the corporators — whether in impaired, but rather to expose fully the the form of stock, bonds, or commonly disparity between his position and the held capital goods — had been vested, doctrine handed down by the majority.1%

then, the state might exert no other Subsequently in Ruggles v. Illinois, he power than that which it exercised over concurred when the Court sustained a the property of individuals. ‘‘“And such maximum-rate law ‘‘on the ground that

must be the case,” Field reiterated in the no proof was made that the rate preSinking Fund Cases, ‘‘or there would be scribed by the legislature was unreason-

no safety in dealing with the government able.”’165 The burden of proof lay with the

where such a [reservation] clause is corporation.1% The legislature only had inserted in its legislation.” Otherwise, to take care that maximum-rate laws progovernment ‘“‘could undo at pleasure vided each company with income comevery thing done under its authority, and |§mensurate with its costs and, since the despoil of their property those [investors] property right subsumed the right to the

who had trusted to its faith.’’1©° fruits of its use, furnished stockholders Field’s construction of the contract with a fair return on their investment.

clause was not unique. In both the state Field never altered this position. He

courts and in the Supreme Court, jurists merely waited for the rest of the Court to had long agreed that reservation clauses assume his posture. After 1886, however, did not authorize legislative interference neither Field nor the Court invoked the with property rights held outside of, and contract clause as a restraint on rate max-

264

Charles W. McCurdy , ima.!°7 But this did not indicate inconsis- conception of ‘the commonwealth” and

tency or opportunism on his part. Americans became ‘“‘obsessed... with Instead, in the Railroad Commission the necessity for making the distinction Cases, Chief Justice Waite asserted that between public and private spheres of

the states’ regulatory power was subject action.’’!72 But the issues arising from the

to the “taking” provision of the due- collapse of cooperation between the pubprocess clause.1°§ This landmark conces- lic and private sectors affected different sion made it no longer necessary to look groups in different ways, and men drew through the corporate entity to its stock- the line as their particularistic interests

holders and creditors. Thus Field’s per- dictated. Thus railroad leaders saw no

sistent demolition work on the discretion reason why government should not grant doctrine of Munn bore fruit even as its them tax exemptions, cash subsidies, or

contract-clause rationale became even an entire harbor. They claimed the obscured; by 1888 he was able to summa- rate-making power, however, as a sover-

rize his position while speaking for a eign right of management “‘that cannot be unanimous court. Railroad corporations, disturbed by any legislative action.’’179

he asserted in Georgia Banking and Merchants and farmers were equally Railroad Co. v. Smith, were subject to opportunistic. In their view internal-

regulation in order to “prevent extortion improvement bonds might be repudiated by unreasonable charges, and favoritism because railroad and manufacturing comby unjust discrimination’? because there panies were “exclusively private,’ but

had been a “grant to it of special privi- the same firms that were ineligible for leges to carry out the object of its incor- subsidies or perpetual immunities might poration, particularly the authority to be regulated at the legislature’s discreexercise the State’s right of eminent tion because they were ‘affected with a. domain.’’!®? But regulation was ‘‘subject public interest.’174 to the limitation that the carriage is not Field’s approach to the ensuing constirequired without reward, or upon condi- tutional controversies was more than a tions amounting to the taking of property narrow philosophy of the bank account. for public use without just compensa- He, too, was obsessed with formulating tion.”17° This restriction was directly rules that separated the public and priapplied in the leading case of Chicago, vate sectors as far as practicable. But he Milwaukee & St. Paul Ry. Co. v. Minne- refused to provide ‘“‘a harbor where refsota, and in 1898 the Court began review- uge can be found” for the inconsistent

| ing state regulatory legislation to claims of any particular interest group.”

ascertain its probable effect on the distri- Instead, Field believed that the proper bution of corporate assets and _liabili- solution to the nation’s policy conflicts ties.171. Judicial review of fact in so lay in uncompromising judicial applicacomplex an area as corporate finance _ tion, on both sides of the promotional added burdensome judicial duties to an regulatory continuum, of the long-estabalready overcrowded docket. But that lished eminent-domain concepts of “‘pub-

was of no consequence to Field. Public lic purpose,” inalienability, and just and private rights not only had to be compensation for public use of private

defined, but the rights of each had to be property. In his view, the body of docprotected from ‘arbitrary’? encroachment trine that logically flowed from those by the other. That, above all else, was = precepts was so consistent and so con-

what Field conceived to be the role of law. ductive to “the peace of society and to its progress and improvement” that he was

In the immediate post—Civil War certain his entire system would ultima-

period, the socioeconomic dislocation tely prevail.17© Munn and all other “‘grave

that accompanied three decades of rapid departure[s] from the purposes of the

growth eroded the unifying, ante-bellum Constitution,” he told a New York crowd

| 265

Justice Field and the Jurisprudence of Government-Business Relations

at the court’s centennial celebration, only transformed Field’s police-power

were ‘“‘bound to die.”’ Any decision that dicta into an iron law of “liberty to condid ‘not fit harmoniously with other rul- tract’”’ but also had permitted the states to ings,” Field declared, ‘‘will collide with devolve eminent-domain powers to minthem, and thus compel explanations and ing companies and had sustained pay-

qualifications until the error is elimin- ment of subsidies to housing-construcated... Truth alone is immortal, and in tion firms.179 As a result, when the affec-

the end [it] will assert its rightful tation doctrine of Munn was finally

supremacy.’’!77 overthrown in Nebbia v. New York, it did But Field’s “immortal truths,’ if viable indeed no longer “fit harmoniously with at all, provided solutions only for the other rulings.’”’ The concerns of Field’s policy issues of the 1870s. The ‘‘public generation had expired, and the Court use”’ and inalienability doctrines offered flatly stated that “there is no closed class no guidance whatsoever on questions or category of businesses affected with a involving labor-management strife or public interest.’’18° Field’s governmentgovernmental control of such “ordinary business jurisprudence perished, howtrades” as sugar and oil refining. For the ever, not because it had been internally

judicial conservatives that succeeded incosistent or had failed to reflect the him, then, the system of immutable rules ideological commitments of post—Civil that Field had formulated to separate the War Americans, but rather because his public and private sectors was irrelevant doctrinal system proved to be inconfor the issues that loomed largest in their gruent with the rapidly changing needs minds.178 And by 1920, the Court had not of an ever-expanding capitalist society.

BLANK PAGE

Part Eight

ee Progressivism and the Law

The most significant developments in the nization and the formation of interest period following the Civil War were not groups to achieve its ends; Americans the short-term changes and events, but the were, and are, in Arthur Schlesinger’s long-term social trends: the migration of phrase, ‘‘a nation of joiners.’’ Labor unionpeople from farm to city and from agricul- ized; farmers organized; business formed

tural to industrial pursuits; the massive trade associations and agglomerated

inflow of immigrants, and the rise of mod- enterprises into pools, combinations, and ern business. These huge social changes trusts. The trades and professions sought

brought new social problems and were consolidation and monopoly status the incentive for new social movements as through occupational licensing. The

well. clashes among these interest groups often Historians have wrangled among them- took the form of legal battles that eventu-

selves over the definition and nature of ally resulted in such major legislation as one of these movements, loosely called the Sherman Antitrust Act and the Interprogressivism. For our purposes it can be state Commerce Act and in legal doctrines defined as a nineteenth-century and early and legal processes (for example, the rise _ twentieth-century reform movement that of the labor injunction). attempted to end corruption, oligarchical The two articles in this section chronipower, and social privilege in politics, cle some of these legal battles. Lawrence and to curb the power of big business, but § Friedman and Jack Ladinsky chart the rise within the framework of a constitutional and fall of the “fellow-servant rule’’ — the

government and a capitalist economy. development of industrial-accident law Reform of political and social structure § from a clear-cut, but harsh, set of rules | meant, necessarily, reform through law: favoring enterprise to the more compli-

constitutional change, new legislation, cated, but more balanced, system of workcourt decisions. As a result, the courts and men’s compensation. In the battles of the legislatures became major battle- | progressivism, however, there were few,

grounds of progressivism. if any, absolute winners and losers. The

American society had never been shy __ legal system developed through a series of about the use of law. Characteristically, ragged compromises; each side gave a litpost-Civil War society also turned to orga- ___ tle, got a little. The reformers were not 267

268

Progressivism and the Law doctrinaire idealists, but even if they had In any event, by the end of the decade the been, they would have had to reckon with controversy died down somewhat, in part the power of business, just as business at least because court decisions temporarultimately had to reckon, however reluc- ily became more liberal. The conflict over

tantly, with the power of labor. the court’s work in reviewing legislation Friedman and Ladinsky also attack the on economic and social questions was not

notion of cultural lag, at least as it is over, however; it would prove to be a applied to law. They argue that the law recurrent one.

responds to social forces and hence,

almost by definition, cannot be “behind Further Reading

the times.’’ What at first sight may appear , , ;

archaic or recalcitrant in 5 legal system, Jacobs, Clyde. Law Writers ane the youn on closer view reflects the equilibrium Bonserey: University of California Press,

OUP he 28 wading ‘tself an d ne he Kolko, Gabriel. Railroads and Regulation, same time seeking to encroach on the 1877-1916. Princeton: Princeton University

others’ territory. Press, ae L dE c Pol Arnold M. Paul’s article looks closely at ; ee Ac . sTh Ey a ot the Sho :

the attitudes of the legal profession in the ney A ‘titrast A . Ne aan of R, d or 1890s. A vigorous, activist — and conser- Hou 1065. che NeW PORK. Nancdom

vative — Supreme Court handed down a Mall ~ Ceorse H. Railroads and the

number of opinions which aroused great Cran ~ baie. Ne dison: University of Wis-

outrage, not only outside the profession 4 P 1971 om y

but inside it as well. This trend was paral- anne Ae d M Conservative Crisis and

leled by decisions in the state courts. -

_ Although the leaders of the bar generally the fue of “aw, Stnuces of Borand Benen

applauded the conservative trend of the 1887-1699. New Yor - arpere sows

nineties, an important minority did not.

Lawrence M. Friedman and Jack Ladinsky

Social Change and the Law of Industrial Accidents

Sociologists recognize, in a general way, a man injured another by direct action — the essential role of legal institutions in by striking him, or slandering him, or by the social order. They concede, as well, trespassing on his property — the victim _ the responsiveness of law to social change could sue for his damages. Similarly, the and have made important explorations of victim of certain kinds of negligent behavthe interrelations involved. Nevertheless, ior had a remedy at law. But tort law was

the role law plays in initiating — or not highly developed. Negligence in parreflecting — social change has never been ticular did not loom large in the reports,

fully explicated, either in theory or and it was not prominently discussed in

through research. The evolution of Ameri- books of theory or practice.1 Indeed, no can industrial-accident law from tort prin- treatise on tort law appeared in America

ciples to compensation systems is an until Francis Hilliard’s in 1859; the first

appropriate subject for a case study on English treatise came out in 1860.

this subject. It is a topic that has been In theory, at least, recovery for indus-

carefully treated by legal scholars, and it trial accidents might have been assimiis also recognized by sociologists to be a lated into the existing system of tort law. significant instance of social change. This The fundamental principles were broad

essay, using concepts drawn from both and simple. If a factory worker was

legal and sociological disciplines, aims at injured through the negligence of another

clarifying the concept of social change person — including his employer — an

and illustrating its relationship to change action for damages would lie. Although as

in the law. , a practical matter servants did not usually

, , , sue their master nor workers their

Background of the Fellow-Servant Rule employers, in principle they had the right

yo, , to do so. In principle, too, a worker might

_ At the dawn of the industrial revolution, have had a » a ction against his empl ay er

the common law of. torts afforded £had db?13 megs orstill anydoes, injury caused bywho thea negligence of remedy, as it for those oe suffered injuries at the hands of others. If any other employee. The doctrine of = a respondeat superior was familiar and fun-

Reprinted, with changes, from Columbia Law damental law. A principal was liable for Review, 67 (1967), 50-82, by permission. __ the negligent acts of his agent. As Black269

270

Lawrence M. Friedman and Jack Ladinsky

stone put it: ““He who does a thing by the butcher, instructed the plaintiff, his seragency of another, does it himself... If an vant, to deliver goods which had been innkeeper’s servants rob his guests, the loaded on a van by another employee. The master is bound to restitution ... So like- van, which had been overloaded, broke wise if the drawer at a tavern sells a man down, and plaintiff fractured his thigh in _bad wine, whereby his health is injured, the accident. Lord Abinger, in his rather

he may bring an action against the diffuse and unperceptive opinion,

master.’’2 reached his holding that the servant had

Conceivably, then one member of an no cause of action by arguing from analoindustrial work force might sue _ his gies drawn neither from industry nor from employer for injuries caused by the negli- trade: gence of a fellow worker. A definitive body of doctrine was slow to develop, If the master be liable to the servant in this however. When it did, it rejected the action, the principle of that liability will... broad principle of respondeat superior carry us to an alarming extent... The foot-

and took instead the form of the so-called man... may have an action against his masfellow-servant rule. Under this rule, a ser- ter for a defect in the carriage owing to the vant (employee) could not sue his master negligence of the coachmaker... The mas(employer) for injuries caused by the neg- ter... would be liable to the servant for the ligence of another employee. The conse- negligence of the chambermaid, for putting

quences of this doctrine were far him into a damp bed;... for the negligence

reaching. An employee retained the right of the cook in not properly cleaning the copto sue the employer for injuries, provided per vessels used in the kitchen...

they were caused by the employer’s per-

sonal misconduct. But the factory system These and similar passages in the opinion

and corporate ownership of industry suggest that Abinger was worried about made this right virtually meaningless. the disruptive effects of a master’s liabilThe factory owner was likely to be a ity upon his household staff. These con“soulless” legal entity; even if the owner siderations were perhaps irrelevant to the

was an individual entrepreneur, he was case at hand, the facts of which did not unlikely to concern himself physically deal with the household of a nobleman, with factory operations. In work acci- great landowner, or rich merchant; a fordents, then, legal fault would be ascribed _tiori the decision itself did not concern to fellow employees, if to anyone. But fel- relationships within an industrial establow employees were men without wealth — lishment. Certainly the opinion made or insurance. The fellow-servant rule was extension of the rule to the factory setting

an instrument capable of relieving somewhat easier to enunciate and formu-

employers from almost all the legal conse- late technically. But it did not justify the quences of industrial injuries. Moreover existence of an industrial fellow-servant the doctrine left an injured worker with- rule. The case might have been totally forout any effective recourse but an empty gotten — or overruled — had not the

action against his co-worker. onrush of the industrial revolution put the

. question again and again to courts, each

Origin and Acceptance of the Rule time more forcefully. Priestley v. Fowler

The origin of the fellow-servant rule is and the doctrine of respondeat superior usually ascribed to Lord Abinger’s opin- each stood for a broad principle. Whether

ion in Priestley v. Fowler,? decided in the one or the other (or neither) would 1837. Yet the case on its facts did not pose find a place in the law relative to industhe question of the industrial accident as trial accidents depended upon needs félt

later generations would understand it; and expressed by legal institutions in

rather, it concerned the employment rela- response to societal demands. Had there tionships of tradesmen. The defendant, a been no Priestley v. Fowler, it would have

271

Social Change and the Law of Industrial Accidents

been necessary — and hardly difficult — which were borne by the public through

to invent one. taxation. The railroads and other indusIn the United States, the leading case on trial employers paid a share as taxpayers the fellow-servant situation was Farwell and, in addition, a kind of insurance cost v. Boston & Worcester Railroad Corp.‘ as part of their wage rate — but no more. decided by Massachusetts’s highest court Additional damages had to be borne by

in 1842. The case arose out of a true the worker; if he could not bear them,

industrial accident in a rapidly develop- society generally would pay the welfare ing industrial state. Farwell was an engi- costs. Thus the opinion expresses a prefneer who lost a hand when his train ran erence for charging the welfare cost of off the track due to a switchman’s negli- industrial accidents to the public rather gence. As Chief Justice Shaw, writing for than to the particular enterprise involved. the court, saw it, the problem of Farwell It is not surprising that such a preferwas how best to apportion the risks of ence was expressed. Shaw’s generation

railroad accidents. In his view, it was placed an extremely high value on ecosuperficial to analyze the problem accord- nomic growth. As Willard Hurst has ing to the tort concepts of fault and negli- noted, that generation was thoroughly gence. His opinion spoke the language of convinced it was ‘“‘socially desirable that contract, and employed the stern logic of there be broad opportunity for the release nineteenth-century economic. thought. of creative human energy,” particularly in Some occupations are more dangerous the “realm of the economy.’’® The estabthan others. Other things being equal, a lishment of a functioning railroad net was worker will choose the least dangerous an essential element in economic growth.

occupation available. Hence, to get In addition, while social welfare is

workers an employer will have to pay an looked upon today as a task of governadditional wage for dangerous work. The ment, and government can lay claim to far market, therefore, has already made an greater resources to accomplish welfare adjustment in the wage rate to compen- goals, in Shaw’s day, private charity was sate for the possibility of accident, and a assigned a higher place in the relief of cost somewhat similar to an insurance misery. Probably most people would have cost has been allocated to the company. agreed that the disabled and wretched As Shaw put it, ‘He who engages in the poor ought not to starve; where private

employment of another for the perform- philanthropy failed, local poor relief

ance of specified duties and services, for stepped in. But it was the most miserable compensation, takes upon himself the sort of minimum, though its deficiencies natural and ordinary risks and perils inci- were not apparent to the average middledent to the performance of such services, or upper-class citizen. Furthermore, in and in legal presumption, the compensa- Shaw’s day certain kinds of crisis and

tion is adjusted accordingly.’’> The risks had to be accepted as inevitable —

worker therefore has assumed the risk of far more of them than would be acceptinjury — for a price. The ‘implied con- able today. High mortality rates from distract of employment” between the worker ease threatened all classes of society.

and employer did not require the Business entrepreneurs ran heavy risks;

employer to bear any additional costs of | business failure was common and could

injury (except for those caused by the be avoided only by great skill and good

employer’s personal negligence). fortune. The instability of the monetary Shaw’s opinion has a certain heartless- system threatened an entrepreneur with ness of tone. A disabled worker without sudden, unpredictable, and uninsurable - resources was likely to be pauperized if he ruin. The present national bankruptcy had no realistic right to damages. Unless system also did not yet exist, and local his family could help him, he would have insolvency laws were chaotic and unpreto fall back upon poor relief, the costs of | dictable.7 Men like Shaw, the bearers of

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Lawrence M. Friedman and Jack Ladinsky _

power and influence, might have con- social problem — that is, they seek to lay ceded that the misfortunes of factory down a stable and clear-cut principle by workers were real, but they would have which men can govern their conduct or, said that insecurity of economic position alternatively, by which the legal system cursed the lot of all but the very rich. The can govern men. If the rule comports with

problem was one of general insecurity. some kind of consensus, it will in fact Shaw and his generation placed their work a solution — that is, it will go hopes of salvation on rapid economic unchallenged, or, if challenged, will pre: growth. Perhaps they were anxious to see vail. Challenges will not usually conthat the tort system of accident compensa- tinue, since the small chance of tion did not add to the problems of new overturning the rule is not worth the cost industry. Few people imagined that acci- of litigation. If, however, the rule is weakdents would become so numerous as to ened — if courts engraft exceptions to it, create severe economic and social disloca- for example — then fresh challenges prob-

tions. On the contrary, rash extension of ing new weaknesses will be encouraged. certain principles of tort law to industrial | Even if the rule retains some support, it accidents might upset social progress by will no longer be efficient and clear-cut. imposing extreme costs on business in its Ultimately, the rule may no longer serve economic infancy. The 1840s and 1850s anybody’s purposes. At this point, a fresh were decades of massive economic devel- (perhaps wholly new) “‘solution’”’ will be opment in New England and the Midwest. attempted.

Textiles, and then iron, spearheaded the The history of the fellow-servant rule industrial revolution; westward expan- rather neatly fits this scheme. Shaw wrote sion and the railroads created new mar- his Farwell opinion in 1842. During the kets. Communities and states made a later part of the century, judges began to social contribution to the construction of _ reject his reasoning. The “tendency in railroads through cash subsidies, stock nearly all jurisdictions,” said a Connecti-

| subscriptions, and tax exemptions. The cut court in 1885, was to “limit rather

courts, using the fellow-servant doctrine than enlarge’’ the range of the fellow-serand the concepts of assumption of risk vant rule.!° A Missouri judge in 1891 canand contributory negligence,® socialized didly expressed the change in attitude:

the accident costs of building the roads. ,

That these solutions represented the con- In the progress of society, and the general sensus, however uneasy, of those with substitution of ideal and invisible masters authority and responsibility is supported and employers for the actual and visible by the fact that every court of the country, ones of former times, in the forms of corpora-

with but one transient exception,? _. tions engaged in varied, detached and widereached the same conclusion in the years spread operations... it has been seen and immediately following Farwell. More- felt that the universal application of the [felover, the fellow-servant rule was not abol- low-servant] rule often resulted in hardship

ished by any legislature in those early and injustice. Accordingly, the tendency of years. Although legislative inaction is not the more modern authorities appears to be in necessarily a sign of acquiescence, it at _the direction of such a modification and limleast indicates lack of strong feelings of itation of the rule as shall eventually devolve

revulsion. , oe upon the employer under these circum-

a . stances a due and just share of the responsi-

, Ss : - initsemploy.11

Weakening the Rule | _ bility for the lives and limbs of the persons

A general pattern may be discerned , |

which is common to the judicial history of The rule was strong medicine, and it

many rules of law. The courts enunciatea | depended for its efficacy upon continued,

tule by which they intend to “solve” a relatively certain, and unswerving legal

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Social Change and the Law of Industrial Accidents

loyalty. Ideally, if the rule were strong plaintiffs won many of their lawsuits; in

and commanded nearly total respect from so doing they not only weakened the felthe various agencies of law, it would elim- low-servant rule, but they encouraged inate much of the mass of litigation that still more plaintiffs to try their hand, still might otherwise arise. Undoubtedly it did more attorneys to make a living from perprevent countless thousands of law suits; sonal-injury suits. In trial courts the pres-

but it did not succeed in choking off sure of particular cases — the “hard”

industrial-accident litigation. For exam- cases in which the plight of the plaintiff ple, industrial-accident litigation domi- was pitiful or dramatic — tempted judges

nated the docket of the Wisconsin and juries to find in favor of the little man

Supreme Court at the beginning of the age and against the corporate defendant. In of workmen’s compensation; far more Shaw’s generation, many leading appelcases arose under that heading than under late judges shared his view of the role of any other single field of law.12 Undoubt- the judge; they took it as their duty to lay

edly, this appellate caseload was merely down grand legal principles to govern the visible portion of a vast iceberg of liti- whole segments of the economic order. gation. Thus the rule did not command Thus individual hardship cases had to be the respect required for efficient operation ignored for the sake of higher duty. But

and hence, in the long run, survival. this was not the exclusive judicial style,

One reason for the continued litigation even in the appellate courts. In personal

may have been simply the great number of injury cases, lower-court judges and juries accidents that occurred. At the beginning were especially prone to tailor justice to of the industrial revolution, when Shaw the case at hand. For example, in Wiscon-

wrote, the human consequences of that sin, of 307 personal injury cases involving technological change were unforeseeable. workers that appeared before the state

In particular, the toll it would take of supreme court up to 1907, nearly two-

human life was unknown. But by the last thirds had been decided in favor of the

quarter of the nineteenth century the worker in the lower courts. In the state

number of industrial accidents had grown supreme court, however, only two-fifths

enormously. After 1900, it is estimated, were decided for the worker. ** Other 35,000 deaths and 2,000,000 injuries states undoubtedly had similar experioccurred every year in the United States. ences. Whether for reasons of sympathy One quarter of the injuries produced disa- with individual plaintiffs, or with the bilities lasting more than one week. The working class in general, courts and Juries railway injury rate doubled in the seven- often circumvented the formal dictates of teen years between 1889 and 1906.13 the doctrines of the common law. In addition to the sheer number of acci- Some weakening of the doctrine took dents, other reasons for the increasing place by means of the control exercised by number of challenges to the rule in the the trial-court judge and jury over find- —

later nineteenth century are apparent. If ings of fact. But sympathy for injured

the injury resulted in death or permanent workers manifested itself also in changes disability, it broke off the employment in doctrines. On the appellate-court level, relationship; the plaintiff or his family a number of mitigations of the fellow-serthereafter had nothing to lose except the vant rule developed near the end of the costs of suit. The development of the con- nineteenth century. For example, it had tingent-fee system provided the poorman _— always been conceded that the employer

with the means to hire a lawyer. was liable if he was personally responsiThe contingent-fee system was no more ble (through his own negligence) for his than a mechanism, however. A losing worker’s injury. Thus, in a Massachusetts plaintiff's lawyer receives no fee; that is | case, a stable owner gave directions to his the essence of the system. The fact is that | employee, who was driving a wagon, that

, 274 Lawrence M. Friedman and Jack Ladinsky

caused an accident and injury to the its road which its employees are to driver (or so the jury found). The operate.”’

employer was held liable.45 Out of this So phrased, of course, the exception simple proposition grew the so-called comes close to swallowing the rule. Had vice-principal rule, which allowed an the courts been so inclined, they might employee to sue his employer where the have eliminated the fellow-servant rule, negligent employee occupied a supervi- without admitting it, simply by expand-

, sory position such that he could more ing the safe-place and safe-tool rules.

properly be regarded as an alter ego of the They were never quite willing to go that principal than a mere fellow servant. This far, and the safe-tool doctrine was itself was a substantial weakening of the fellow- subject to numerous exceptions. In some

servant doctrine. Yet some states never jurisdictions, for example, the so-called accepted the vice-principal rule; in those . simple-tool rule applied: “Tools of ordithat did, it, too, spawned a bewildering nary and everyday use, which are simple multiplicity of decisions, sub-rules, and in structure and requiring no skill in hansub-sub-rules. ‘‘The decisions on the sub- dling — such as hammers and axes — not ject, indeed, are conflicting to a degree | obviously defective, do not impose a liawhich, it may safely be affirmed, is with- bility upon employerf[s] for injuries resultout a parallel in any department of juris- | ing from such defects.’’18 prudence.’’!© This statement appeared in Doctrinal complexity and vacillation in a treatise, written on the eve of workmen’s _ the upper courts coupled with jury freecompensation, which devoted no fewer dom in the lower courts meant that by the than 524 pages to a discussion of the rami- end of the century the fellow-servant rule

fications of the vice-principal rule. had lost much of its reason for existence: There were scores of other ‘“‘exceptions”’ it was no longer an efficient cost-allocat-

to the fellow-servant rule enunciated in ing doctrine. Even though the exceptions one or more states. Some of them were of did not go the length of obliterating the great importance. In general, an employer rule, and even though many (perhaps was said to have certain duties that were most) injured workers who had a possible not ‘“‘delegable;”’ these he must do or have cause of action did not or could not done, and a failure to perform them laid recover, the instability and unpredictabihim open to liability for personal injuries. lity of operation of the common-law rule Among these was the duty to furnish a was a significant fact. safe place to work, safe tools, and safe The numerous judge-made exceptions appliances. Litigation on these points was __ reflected a good deal of uncertainty about

enormous, and here, too, the cases cannot underlying social policy. The same readily be summed up or even explained. uncertainty was reflected in another

In Wedgwood v. Chicago & Northwestern sphere of legal activity — the legislature. Railway Co.17 the plaintiff, a brakeman, |§ Though the rule was not formally abrowas injured by a “‘large and long bolt, out gated, it was weakened by statute in a

of place, and which unnecessarily, care- number of jurisdictions. Liability statlessly and unskillfully projected beyond utes, as will be seen, were rudimentary the frame, beam or brakehead, in the way and in many' ways ineffective. This was of the brakeman going to couple the cars.”’ partly because of genuine uncertainty ~The trial court threw the case out, but the about the proper attitude to take toward Wisconsin Supreme Court reversed: “‘It is industrial-accident costs — an uncertrue, the defendant... is a railroad cor- tainty reflected in the cases as well. The poration, and can only act through early nineteenth century cannot be uncri-

, officers or agents. But this does not relieve tically described as a period that

it from responsibility for the negligence of accepted without question business valits officers and agents whose duty it is to ues and practices. Rather it accepted the provide safe and suitable machinery for ideal of economic growth, which certain

275

Social Change and the Law of Industrial Accidents __.

kinds of enterprise seemed to hinder. nology suggests — though direct eviThus in the age of Jackson, as is well dence is lacking — that some of these known, popular feeling ran high against statutes were connected with the general financial institutions, chiefly the char- revolt of farmers against the power of the tered banks. Banks were believed to have railroad companies, a revolt associated

far too much economic power; they cor- with the Granger movement, which rupted both the currency and the govern- achieved its maximum power in the ment. They were a ‘‘clog upon the 1870s.24 Wisconsin in 1875 abolished the industry of this country.’’!9 But many a fellow-servant rule for railroads ; in 1880, good judge, who decried the soulless cor- however, when more conservative forces poration (meaning chiefly the moneyed regained control of the legislature, the act

kind) in the best Jacksonian tradition, was repealed.?5 may at the same time have upheld the Despite the fall of Granger legislatures, fellow-servant rule. One did not, in other the legal and economic position of the words, necessarily identify the interests railroads was permanently altered. By of the common man with industrial lia- 1911 twenty-five states had laws modify-

bility for personal injuries. ing or abrogating the fellow-servant doc-

Later on, the railroads replaced the trine for railroads.2® Railroad accident banks as popular bogeymen. By the law reached a state of maturity earlier

1850s some of the fear of excessive eco- than the law of industrial accidents gennomic power was transferred to them. erally; safety controls were imposed on Disregard for safety was one more black the roads, and the common-law tort sys-

mark against the railroads; farmers, small tem was greatly modified by removal of businessmen, and the emerging railroad the employer’s most effective defense. unions might use the safety argument to The Interstate Commerce Commission

enlist widespread support for general called a conference of state regulatory

regulation of railroads, but the essential authorities in 1889; the safety problem thrust of the movement was economic. was discussed, and the commission was The railroads were feared and hated urged to investigate the problem and rec-

because of their power over access to the ommend legislation.??7 In 1893 Congress

market. They became ‘‘monopolistic”’ as required interstate railroads to equip

the small local lines were gradually themselves with safety appliances, and amalgamated into large groupings con- provided that any employee injured ‘‘by

trolled by ‘‘robber barons.” Interstate any locomotive, car, or train in use”

railroad nets were no longer subject to without such appliances would not “‘be local political control — if anything, they deemed... to have assumed the risk controlled local politics, or so it plau- thereby occasioned.’’ 28 sibly appeared to much of the public. The Federal Employers’ Liability Act Farmers organized and fought back (FELA) of 190829 went much further; it against what they identified as their eco- abolished the fellow-servant rule for

nomic enemy. It is not coincidental that railroads and greatly reduced the | the earliest derogations from the strict- strength of contributory negligence and ness of the fellow-servant rule applied assumption of risk as defenses. Once the only to railroads. For example, the first employers had been stripped of these statutory modification, passed in Georgia potent weapons, the relative probability in 1856, allowed railroad employees to of recovery by injured railroad employees recover for injuries caused by the acts of was high enough that workmen’s comfellow servants, provided they them- pensation never seemed as essential for selves were free from negligence.2° A the railroads as for industry generally. similar act was passed in Iowa in 1862.21 The highly modified FELA tort system Other statutes were passed in Wyoming survives (in amended form) to this day (1869)?2 and Kansas (1874).23 The chro- for the railroads.2° It is an anachronism,

276

Lawrence M. Friedman and Jack Ladinsky

but one which apparently grants some ily predictable, partly because the legal modest satisfaction to both sides. Labor consequences of accidents were not preand management both express discontent dictable. Insurance, though available, with FELA, but neither side has been so — was expensive.

firmly in favor of a change to workmen’s In addition, industry faced a serious

compensation as to make it a major problem of labor unrest. Workers and

issue.3! | , , their unions were dissatisfied with many _ FELA shows one of many possible out- — aspects of factory life. The lack of com-

comes of the decline in efficacy of the fel- pensation for industrial accidents was low-servant rule. Under it, the rule was one obvious weakness. Relatively few

eliminated, and the law turned to a injured workers received compensation. “pure” tort system — pure in the sense Under the primitive state employers’ lia-

that the proclivities of juries were not bility statutes, the issue of liability and

interfered with by doctrines designed to the amount awarded still depended upon limit the chances of a worker’s recovery. court rulings and jury verdicts. FurtherBut the railroads were a special case. |§ more the employer and the insurance carAside from the special history of regula- rier might contest a claim or otherwise tion, the interstate character of the major delay settlement in hopes of bringing the

railroads made them subject to national employee to terms. The New York safety standards and control by a single Employers’ Liability Commission in 1910 national authority. For other industrial | reported that delay ran from six months

employers, the FELA route was not to six years.

taken; instead, workmen’s compensation ,

acts were passed. In either case, however, The injured workman is driven to accept the fellow-servant rule was abolished, or ~~ whatever his employer or an insurance virtually so. Either course reflects, we company chooses to give him or take his can assume, some kind of general agree- _ chance in a lawsuit. Half of the time his

ment that the costs of the rule lawsuit is doomed to failure because he has

outweighed its benefits. | , | been hurt by some trade risk or lacks proof oe i: for his case. At best he has a right to retain a Rising Pressures for Change lawyer, spend two months on the plead-

The common-law doctrines were | ings, watch his case from six months to two designed to preserve a certain economic years on a calender and then undergo the balance in the community. When the lottery of a jury trial, with a technical syscourts and legislatures created numerous tem of law and rules of evidence, and exceptions, the rules lost much of their beyond that appeals and perhaps reversals efficiency as a limitation on the liability - on questions that do not go to the merits...

of businessmen. The rules prevented If he wins, he wins months after his most

many plaintiffs from recovering, but not urgent need is over.

all; a few plaintiffs recovered large ver- | dicts. There were costs of settlements, When an employee did recover, the costs of liability insurance, costs of amount was usually small. The New administration, legal fees and the salaries York Commission found that of fortyof staff lawyers. These costs rose steadily eight fatal cases studied in Manhattan, at the very time when American busi- eighteen families received no compensaness, especially big business, was striv- tion; only four received.over $2,000; most

ing to rationalize and bureaucratize its received less than $500. The deceased

operations. It was desirable to be able to workers had averaged $15.22 a week in predict costs and insure against fluctuat- wages; only eight families recovered as ing, unpredictable risks. The costs of | much as three times their average yearly industrial-accident liability were not eas- earnings. The same inadequacies turned

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Social Change and the Law of Industrial Accidents

up in Wisconsin in 1907. Of fifty-one ing to find that businessmen gradually

fatal injuries studied, thirty-four received withdrew their veto against workmen’s

settlements under $500; only eight compensation statutes. They began to say

received over $1,000. that a reformed system was inevitable —

Litigation costs consumed much of and even desirable. A guaranteed, insurwhatever was recovered. It was estimated able cost — one which could be comthat in 1907 “of every $100 paid out by puted in advance on the basis of accident [employers in New York] on account of experience — would, in the long run,

| work accidents but $56 reached the cost business less than the existing sys-

injured workmen and their dependents.”’ tem.3? In 1910 the president of the Even this figure was unrepresentative National Association of Manufacturers because it included voluntary payments (NAM) appointed a committee to study by employers. ‘‘A fairer test of employers’ the possibility of compensating injured liability is afforded by the $192,538 paid workmen without time-consuming and by these same employers as a result of expensive litigation, and the convention

law suits or to avoid law suits, whereof that year heard a speaker tell them that

only $80,888, or forty-two percent, no one was satisfied with the present

reached the beneficiaries.” A large frac- state of the law — that the employers’ liation of the disbursed payments, about __ bility system was “‘antagonistic to harmo-

one-third, went to attorneys who nious relations between employers and

accepted the cases on a contingent basis. wage workers.’33 By 1911 the NAM These figures on the inadequacy of appeared convinced that a compensation , recoveries are usually cited to show how system was inevitable and that prudence

little the workers received for their pains. dictated that business play a positive role

But what did these figures mean to in shaping the design of the law — otheremployers? Assuming that employers, as wise the law would be ‘“‘settled for us by

rational men, were anxious to pay as lit- the demagogue, and agitator and the

tle compensation as was necessary to pre- socialist with a vengeance.’’34 Business

serve industrial peace and maintain a would benefit economically and politihealthy work force, the better course cally from a compensation system, but might be to pay a higher net amount only if certain conditions were present. _ directly to employees. Employers had lit- Business, therefore, had an interest in tle or nothing to gain from their big pay- pressing for a specific kind of program, ments to insurance companies, lawyers, and turned its attention to the details of

and court officials. Perhaps at some the new system. For example, it was

unmeasurable point the existing tort sys- imperative that the new system be in fact

tem crossed an invisible line and thereaf- as actuarially predictable as business

ter, purely in economic terms, demanded; it was important that the

represented on balance a net loss to the costs of the program be fair and equal in industrial establishment. From that point their impact upon particular industries, on, the success of a movement for change so that no competitive advantage or disin the system was certain, provided that advantage flowed from the scheme. Conbusinessmen could be convinced that sequently the old tort actions had to be indeed their self-interest lay in the direc- eliminated, along with the old defenses tion of reform and that a change in com- of the company. In exchange for certainty pensation systems did not drag with it of recovery by the worker, the companies

other unknowable and harmful were prepared to demand certainty and

consequences. - predictability of loss — that is, limitation When considerations of politics were of recovery. The jury’s caprice had to be

added to those of business economics dispensed with. In short, when workand industrial peace, it was not surpris- men’s compensation became law as a

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Lawrence M. Friedman and Jack Ladinsky

solution to the industrial-accident prob- spite of wide variations in the systems

lem, it did so on terms acceptable to proposed, there was agreement on one

industry. Other pressures were there to point: workmen’s compensation must fix be sure, but when workmen’s compensa- liability upon the employer regardless of tion was enacted, businessmen had come fault. to look on it as a positive benefit rather Between 1910 and 1920 the method of

than as a threat to their interests and compensating employees injured on the

profits. job was fundamentally altered in the United States. In brief, workmen’s-com-

, The Emergence of Workmen’s- pensation statutes eliminated (or tried to

Compensation Statutes eliminate) the process of fixing civil liability for industrial accidents through litThe change of the businessman’s, the igation in common-law courts. Under the judge’s, and the general public’s attitudes statutes, compensation was based on stat-

toward industrial injuries was accel- utory schedules, and the responsibility erated by the availability of fresh infor- for initial determination of employee mation on the extent of accidents and claims was taken from the courts and

their cost to both management and given to an administrative agency. workers. By 1900 industrial accidents Finally, the statutes abolished the fellowand the shortcomings of the fellow-ser- servant rule and the defenses of assumpvant rule were widely perceived as prob- _ tion of risk and contributory negligence. lems that had to be solved. After 1900 Wisconsin’s law, passed in 1911, was the state legislatures began to look for a first general compensation act to survive “solution” by setting up commissions to a court test.38 Mississippi, the last state in gather statistics, to investigate possible the Union to adopt a compensation law, new systems, and to recommend legisla- did so in 1948.9

tion.25 The commissions held public Compensation systems varied from hearings and called upon employers, state to state, but they had many features

labor, insurance companies, and lawyers in common. The original Wisconsin law to express their opinions and propose ~ was representative of the earlier group of changes. A number of commissions col- statutes. It set up a voluntary system — a lected statistics on industrial accidents, | response to the fact that New York’s

costs of insurance, and amounts dis- courts had held a compulsory scheme

bursed to injured workmen. By 1916 unconstitutional on due-process

many states and the federal government — grounds.*° Wisconsin abolished the fel-

had received more or less extensive pub- low-servant rule and the defense of lic reports from these investigating assumption of risk for employers of four

bodies.3¢ The reports included studies of | or more employees. In turn, the compen- _

industrial-accident cases in the major sation scheme, for employers who

industries, traced the legal history of the elected to come under it, was made the

cases, and looked into the plight of the “exclusive remedy’ for an employee injured workmen and their families. injured accidentally on the job. The eleFrom the information collected the ment of ‘‘fault’”’ or ‘‘negligence”’ was eli-

commissions were able to calculate the minated, and the mere fact of injury at costs of workmen’s compensation sys- work “proximately caused by accident’’ tems and compare them with costs under and not the result of ‘‘wilful misconduct” | employers’ liability. Most of the commis- made the employer liable to pay compensions concluded that a compensation sys- sation but exempt from ordinary tort lia-

tem would be no more expensive than bility.41 The state aimed to make it the existing method,?? and most of them expensive for employers to stay out of the

recommended adoption, in one form or system. Any employer who did so was another, of workmen’s compensation. In liable to suit by injured employees, and

279

Social Change and the Law of Industrial Accidents

the employer was denied the common- brief, ad hoc, and unstable compromises

law defenses. between the clashing interests of labor The compensation plans strictly lim- and management. When both sides

ited the employee’s amount of recovery. became convinced that the game was In Wisconsin, for example, if an accident mutually unprofitable, a compensation caused “partial disability,’ the worker system became possible. But this system was to receive 65 percent of his weekly was itself a compromise: an attempt at a loss in wages during the period of dis- new, workable, and predictable mode of ability, not to exceed four times his handling accident liability which neatly average annual earnings.4? The statutes, balanced the interests of labor and therefore, were compensatory, not puni- management.

| tive, and the measure of compensation |

: was, subject to strict limitations, the loss The Concept of Cultural Lag of earning power of the worker. In the

original Wisconsin act, death benefits The problem of ‘‘fair and efficient inciwere also payable to dependents of the dence of industrial accident costs,”’ in the worker. If the worker who died left ‘‘no words of Willard Hurst, ‘followed a fum-

person dependent upon him for sup- bling course in courts and legislature for port,” the death benefit was limited to fifty years before the first broad-scale ‘the reasonable expense of his burial, not direction [leading to workmen’s compenexceeding $100.’’43 Neither death nor sation] was applied.’’4> In a famous book injury as such gave rise to a right to com- written in 1922, the sociologist William

pensation — only the fact of economic Fielding Ogburn used the example of loss to someone, either the worker him- workmen’s compensation and the fifty-

self or his family. The Wisconsin act year period of fumbling to verify his

authorized employers to buy annuities ‘hypothesis of cultural lag.’’46 ‘‘Where from private insurance companies to one part of culture changes first,’ said cover projected losses. Most states later Ogburn, ‘“‘through some discovery or made insurance or self-insurance com- invention, and occasions changes in pulsory. Some states have socialized § some part of culture dependent upon it, compensation insurance, but most allow there frequently is a delay ... The extent

the purchase of private policies.44 of this lag will vary... but may exist

In essence, then, workmen’s compensa- for... years, during which time there tion was designed to replace a highly may be said to be a maladjustment.” In | unsatisfactory system with a rational, the case of workmen’s compensation, the actuarial one. It should not be viewed as lag period was from the time when the replacement of a fault-oriented com- industrial accidents became numerous pensation system with one unconcerned until the time when workmen’s compenwith fault. It should not be viewed as a sation laws were passed, “‘about a halfvictory of employees over employers. In century, from 1850-70 to 1915.’ During its initial stages, the fellow-servant rule this period, “‘the old adaptive culture, the

was not concerned with fault, either, but common law of employers’ liability, with establishing a clear-cut, workable, | hung over after the material conditions and predictable rule, one which substan- had changed.”’ tively placed much (if not all) of the risk The concept of cultural lag is still on the worker. Industrial accidents were widely used, in social science and out, not seen as a social problem, but at most particularly since its popularization by as an economic problem. As value per- Stuart Chase in The Proper Study of ceptions changed, the rule weakened; it Mankind.*’ The notion that law fails to developed exceptions and lost its effi- adjust promptly to the call for change is ciency. The exceptions and counterex- also commonly voiced. In popular parceptions can be looked at as a series of lance, this or that aspect of the law is

280 , Lawrence M. Friedman and Jack Ladinsky | often said to ‘lag behind the times.’’ This century accepts the idea of insuring those

idea is so pervasive that it deserves com- unable to bear economic loss at the ment quite apart from its present status expense of the nearest person at hand

in sociological thought. a who is able to bear it.48 This conception | ~The lesson of industrial-accident law was relatively unknown and unaccept-

as here described may be quite the oppo- able to judges of the nineteenth century.

site of the lesson that Ogburn drew. In a The fellow-servant rule could not be

purely objective (nonteleological) sense, replaced until economic affluence, busisocial processes — and the legal system ness conditions, and the state of safety

— cannot aptly be explained by the technology made feasible a more social notion of lag. When, in the face of solution. Labor unions of the mid—ninechanged technology and new problems, a teenth century did not call for a compen-

social arrangement stubbornly persists, sation plan; they were concerned with there are social reasons why this is so; more basic (and practical) issues such as there are explanations why no change or wages and hours. Social insurance, as slow change occurs. The legal system is a much as private insurance, requires stan-

part of the total culture; it is not a self- | dardization and rationalization of busioperating machine. The rate of response ness, predictability of risk, and reliability to a call for change is slow or fast in the and financial responsibility of economic law depending upon who issues the call institutions. These were present in 1909,

and who (if anybody) resists it. ‘‘Pro- but not in 1850.

gress” or ‘‘catching up” is not inevitable Prior to workmen’s compensation, the or predictable. Legal change, like social legal system reflected existing conflicts

change, is a change in behavior of indi- of value quite clearly; the manifold

viduals and groups in interaction. The exceptions to the fellow-servant rule and rate of change depends upon the kind of — the primitive liability statutes bear witinteraction. To say that institutions ‘‘lag’’ ness to this fact. These were not sympis usually to say no more than they are toms of ‘‘lag’’; rather they were a measure slow to make changes of a particular type. of the constant adjustments that inevitBut why are they slow? Often the ably take place within a legal system that answer rests on the fact that these institu- is not insulated from the larger society tions are controlled by, or respond to, but is an integral part of it. To be sure, groups or individuals who are opposed the courts frequently reflected values of to the specific change. This is lag only if the business community and so did the we feel we can confidently state that legislatures, but populist expressions can these groups or individuals are wrong as easily be found in the work of judges, to their own self-interest as well as that legislatures, and juries. In the absence of of society. Of course, people are often a sophisticated measuring rod of past wrong about their own self-interest; they public opinion — and sophisticated con-

can be and are short-sighted, ignorant, cepts of the role of public opinion in maladroit. But ignorance of this kind nineteenth-century society — who is to exists among progressives as well as say that the legal system “lagged” behind

among conservatives — among those some hypothetical general will of the

-who want change as well as among those — public or some hypothetically correct

who oppose it. Resistance to change is solution? — — “Jag” only if there is only one ‘‘true”’ def- The concept of lag may also be inition of a problem — and one “‘true”’ employed in the criticism of the courts’

solution. _ use. of judicial review to retard the effi-

There were important reasons why fifty cacy of social-welfare legislation. In 1911 |

years elapsed before workmen’s compen- — the New York Court of Appeals declared

sation became part of the law. Roscoe the state’s compulsory Workmen’s Com-

Pound once remarked that the twentieth pensation Act unconstitutional. As a

281

| Social Change and the Law of Industrial Accidents result of this holding, the state constitu- social problem, and since state legisla-

tion had to be amended — two years later tures were weak political structures, they — before workmen’s compensation was were content at first to leave accidents to legally possible in New York.*9 Because tort law and the courts. 52 Moreover, state

of the New York experience, six states agencies were not delegated the task of also amended their constitutions and collecting information on the nature and others enacted voluntary plans. The issue extent of industrial accidents until relati-

was not finally settled until 1917, when vely late. The Wisconsin legislature

the United States Supreme Court held created a Bureau of Labor and Industrial both compulsory and elective plans to be Statistics in 1883, but it did not provide -constitutional.5° But it adds little to an for the collection of data on industrial

understanding of social process to accidents until 1905.5 When a need for

describe this delay in terms of the con- accident legislation was perceived, indicept of cultural lag. Courts do not act on vidual legislators under pressure from their own initiative. Each case of judicial constituencies began to introduce workreview was instigated by a litigant who accident indemnity bills. Some were inarepresented a group in society which was dequately drafted; most were poorly fighting for its interests as it perceived understood. In order to appraise potential them; these were current, real interests, legislation, investigating commissions not interests of sentiment or inertia. This were created to collect information, is completely apart from consideration of weigh the costs, and report back alternawhat social interests the courts thought tive solutions. they were serving in deciding these cases What appears to some as an era of — interests which hindsight condemns “lag” was actually a period in which as futile or wrong, but which were living issues were collectively defined and

issues and interests of the day. alternative solutions posed, and during Conflicts of value also arose in the which interest groups bargained for

legislatures when they began to consider favorable formulations of law. It was a compensation laws. The Massachusetts period of ‘“‘false starts’’ — unstable com-

investigating commission of 1903 promise formulations by decision makers

reported a workmen’s-compensation bill armed with few facts, lacking organizato the legislature, but the bill was killed tional machinery, and facing great, often in committee on the ground that Massa- contradictory, demands from many pub- chusetts could not afford to increase the lics. There was no easy and suitable soluproduction costs of commodities manu- tion, in the light of the problem and the factured in the state.51 Once more, the alignment of powers. Indeed, workmen’s emergence of compensation depended compensation — which today appears to

upon a perception of inevitability — be a stable solution — was only a com-

which could cancel the business detri- promise, an answer acceptable to enough

ment to particular states that enacted people and interest groups to endure compensation laws — and of general eco- over a reasonably long period of time.

nomic gain from the new system. It is not © Part of what was later called “lag,” enough to sense that a social problem then, is this period of false starts — the

exists. Rational collective action inadequate compromises by decision

demands relatively precise and detailed makers faced with contradictory interest information about the problem, and clear groups pressing inconsistent solutions. placement of responsibility for proposing There may not be a ‘‘solution”’ in light of and implementing a solution. For many the alignment of interests and powers years legislatures simply did not con- with respect to the problem at any given sider it their responsibility to do any- time. Perhaps only a compromise “‘soluthing about industrial injuries. Since tion’’ is possible. What later appears to be they did not view accidents as a major _ the final answer is in fact itself a compro-

282 |

Lawrence M. Friedman and Jack Ladinsky

mise — one which is stable over some described that way. Different preceptions significant period of time. Sociologically of the problem, based at least in part on that is what a “‘solution” to a problem is: different economic and social stakes, led nothing more than a stable compromise to different views of existing and potenacceptable to enough people and interest tial law. When these views collided, groups to maintain itself over a signifi- compromises were hammered out. Work-

cant period of time. Theoretically, of men’s compensation took form not

course, the total victory of one competing because it was (or is) perfect, but because

_ interest and the total defeat of another is it represented a solution sufficiently possible. But in a functioning democratic acceptable to enough interests to society, total victories and total defeats outweigh the costs of additional struggle are uncommon. Total defeat would mean and bargaining. If there was ‘‘lag’’ in the that a losing group was so utterly power- process, it consisted of acquiescence in

less that it could exert no bargaining apparently acceptable solutions which

pressure whatsoever; total victory simi- turned out to be inadequate or unstable larly would imply unlimited power. In in the long run. “‘Lag’’, therefore, at most

the struggle over industrial-accident leg- means present-minded pragmatism

islation, none of the interests could be rather than long-term rational planning.**4

Arnold M. Paul ~

_ Legal Progressivism, the Courts, and the Crisis of the 1890s

The significance of the courts as instru- on many phases of the new judicial interments of conservative defense in the half- ventionism, and an important minority of

century 1887-1937 has long been legal progressives? protested vigorously

established. The decisive years in the against judicial guardianship of the status

development of this judicial conservatism quo.? Suspicious of the growing power of

were the 1890s, when rising social ten- corporate capital with its techniques of sion and popular unrest seemed to consolidation and control, sensitive to the

demand new and vigorous exercises of exploitation of labor in factories and

judicial power. The transformation of the mines, the legal progressives of the 1890s

due-process clause into a substantive represented the traditions of a more equacheck upon legislative regulation, the litarian, more socially aware America. elaboration of the labor injunction as an Though ideas for reform varied and were antistrike weapon, the emasculation of often ill-defined, several main themes the Sherman Act in the E. C. Knight case, predominated in progressive legal and the overthrow of the federal income thought: destruction or close control of

tax in the Pollock case were related the ‘‘trusts,”’ strict regulation of the

aspects of a massive judicial entry into the railroads and other public-service corsocioeconomic scene. American constitu- porations, protection of workingmen from tionalism underwent a revolution in the unconscionable employers, income and 1890s, a conservative-oriented revolution inheritance taxes on great wealth. How which vastly expanded the scope of judi- these progressives reacted to the changing cial supremacy, with great consequence social atmosphere of the 1890s, and more for American economic and _ political particularly to the new role of the judi-

history.! ciary, is a revealing addendum to the The advance of judicial conservatism in story of American social protest.> the 1890s was not, however, uncontested. In the late 1880s legal progressives had

The legal profession itself, contrary to cause for encouragement. The tensions most assumptions, was sharply divided aroused by the Haymarket Riot of 1886 had gradually receded, while the moveReprinted, from Business History Review, 83 (1959), ment for social regulation was gaining

497-509, by permission. strength. The federal government had 283

284 |

Arnold M. Paul

enacted the Interstate Commerce Act, Pennsylvania oleomargarine case, premany states were passing antitrust acts dicted in the March 1889 issue of the

with great pressure mounting for a sweep- American Law Register that the recent ing federal antitrust law, and state protec- string of Supreme Court decisions would tion against abuses of the labor contract sustain the widest range of legislative disappeared to be a growing trend.® Most sig- cretion.!? “In a complex social system,”’

nificant to lawyers, the United States he wrote, “‘the tendency necessarily must Supreme Court was apparently standing be towards affirmative exercise of govern-

firm by its broad underwriting of the state mental powers.’ ,

police power in the great case of Munn v. Three months later, in March 1890, the Illinois.” In that case, one of the famous _legal, if not the political, compass veered

Granger cases of 1877, the Court had sharply, as the United States Supreme

upheld the power of the states to regulate Court handed down its decision in the the rates of businesses affected with a case of Chicago, Milwaukee & St. Paul public interest, and had declared that the Railway Co. v. Minnesota,!? the first of a reasonableness of the rates established series of judicial retreats from the Munn was a legislative, not a judicial, question. case. Striking down a Minnesota act Though in 1886 the Court had permitted establishing a railway commission with corporations to be included under the power to set schedules of rates to be conterm ‘‘persons’’ as used in the due— sidered final and conclusive, the Court process clause of the Fourteenth Amend- declared that a commission’s schedules ment,® successive cases had reaffirmed, must be subject to judicial review by the and even extended, the power of the state regular courts of law. The reasonableness

to regulate private property.° The high of rate regulations, said the Court majorpoint in this series of cases had been ity, was ‘‘eminently a question for judicial , reached in April 1888, when the Supreme investigation, requiring due process of Court had sustained a Pennsylvania law law for its determination.’’!4 Three jusprohibiting the manufacture of oleomar- tices dissented, maintaining that Munn v. garine, Justice Harlan holding that to Illinois had been practically overruled, challenge the good faith of the legislature and warning that courts all over the land was to raise ‘‘questions of fact and of pub- would now be called upon to review decilic policy which belong to the legislative sions of state railroad commissions. 15

department to determine.’’!° Legal progressives were indignant. SeyIn response to these trends legal pro- mour D. Thompson, a well-known writer gressives were highly optimistic on the 7 of legal texts, senior editor of the widely

eve of the 1890s. Charles C. Bonney, read American Law Review, and for ten

, former president of the Illinois Bar Asso- years judge of the St. Louis Court of ciation, issued a confident call to the Appeals,’© asserted in an editorial that the

American bar in midsummer 1888 to take effect of the Supreme Court’s opinion was the lead in behalf of popular right “‘in the “to subject the legislation of the States to

great conflict now impending between judicial superintendence upon the mere the people and the giant forces that are question of its reasonableness.’’17 The striving for the practical control of. the Court’s decision, Thompson continued, republic.’’11_ Urging greatly expanded was thus “an overturning of the fundastate control over labor relations, Bonney mental principles upon which all our declared it a paramount duty of govern- § American governments are founded... ment ‘‘to protect the weak against the that the three coordinate departments...

strong, and to prevent, by stringent laws are independent of each other.”

and their vigorous enforcement, the | An even fiercer attack on the Supreme

oppression of the poor and friendless by Court was made by Allan B. Brown of the the rich and powerful.” A.H. Wintersteen, Chicago bar. As Brown saw it, the overrid-

the successful counsel for the state inthe ing evils of the age — the condition of

, 285

Legal Progressivism, the Courts, and the Crisis of the 1890s

labor, “the enormous concentration of because of alleged inferior work;?3 an IIliwealth in a few hands,” and the abuse of nois coal ‘‘screening”’ law regulating com-

corporate privileges - had been perpet- putation of wages to miners;?4 a Texas uated and aggravated by the Supreme statute requiring railroads to pay all back Court. From the decisions of John Mar- wages within eight days after termination shall’s day, applying the federal contract of employment;?5 and a weekly payment

clause to state-granted corporation law of Illinois.26 What made many of charters, to recent declarations that a cor- these cases especially striking were the

poration was a ‘‘person”’ and a ‘“‘citizen’’ frank laissez faire statements appearing in

and entitled to judicial protection from the opinions. Judge Snyder of the West ‘unreasonable’ regulation, the Supreme Virginia Court of Appeals, for example, Court had thwarted the popular will and denied the right of the state to regulate the elevated the corporation above the state. labor contract on the view that govern-

As a preventive of more such decisions, ment was not authorized “to do for its Brown gave this fervent advice: ‘‘Put men people what they can do for themselves. on the bench who will not hesitate to defy The natural law of supply and demand is precedent, and pull down the moldy mon- the best law of trade.’’27

strosities Marshall and his compeers set The attack on freedom of contract was up. Make your judges elective so you can led by Seymour D. Thompson, the St. keep them in touch with the people and Louis judge and law editor and easily the you will find them correspondingly jeal- most articulate of the legal progressives.

ous of the people’s rights.’'1® ‘“‘What mockery to talk about the freedom At the same time that legal progressives of contract,’’ exclaimed Thompson

were responding sharply to the Supreme addressing the Kansas Bar Association in Court’s new shift to economic conserva- January 1892, ‘‘where only one of the contism, they were equally concerned over tracting parties is free! What mockery to

developments in the state courts, particu- talk about the freedom of contract as

larly the rise of the doctrine of freedom of between the corporation which has every-

contract. The origins and growth of this thing and a day laborer who has

remarkable doctrine, which would attain nothing!’’28 a

an unenviable reputation for judicial opa- Thompson’s midwestern denunciation city before its atrophy in the late 1930s, of freedom of contract was soon followed have been well chronicled by constitu- by two New England criticisms considertional historians.19 By ‘‘freedom of con- ably less oratorical but almost equally tract’ or “liberty of contract’? was meant severe. Herbert H. Darling of Boston, just

the alleged right of employer and graduated from the Harvard Law School,

employee under the due-process clause to argued in the May 1892 issue of the Harcontract at will on the terms of employ- vard Law Review that the basic question ment, unhampered by legislative prohib- in all the freedom-of-contract cases was itions or requirements. Though first used the degree of legislative discretion under

by state courts in the mid-1880s,?° the the police power. As Darling put it, “An doctrine had languished until 1889 when ostensible exercise of the power which in a sudden rash of decisions aroused profes- reality cannot be sustained from any point

sional attention. Among the laws of view ... is undoubtedly invalid; but if

annulled in the next few years were ‘‘store there is any doubt, however slight, that order” acts of West Virginia, Illinois, and doubt must be resolved in favor of the Missouri prohibiting payment of wages in legislature.’’2° Several months later, company “‘scrip’’;?! a city of Los Angeles Conrad Reno, a well-known Boston law-

ordinance prescribing the eight-hour day yer,°° writing in the American Law for employees of municipal contractors; Review in support of a system of state _ the Massachusetts weavers’ fines bill, pro- arbitration boards which would be

hibiting fines or deductions of wages empowered, in cases submitted to it by

286 |

Arnold M. Paul

either side, to set minimum wages and celebrated uses of the injunction — was,

maximum hours enforceable at law, had of course, the great Chicago railway strike

this to say about the freedom-of-contract of June 1894, when the 150,000-man

cases: , American Railway Union of Eugene V. Debs undertook a nationwide sympathy If there be any benefit in maintaining the strike on behalf of the 3,000 strikers of the independence of the three departments of Pullman Corporation. The intervention of government, the time seems to have arrived the federal courts, and of federal troops to to call a halt upon the encroachments of the enforce the process of the courts, quickly

judiciary. Progress along economic lines ended the strike, though not before an must cease, if the courts have the power to atmosphere of class conflict, marked by seize upon vague clauses in the constitution considerable bloodshed and destruction

to perpetuate the economic views of the of property, had sharply intensified the past, and to fasten them upon the present as crisis psychology of the times.

matters of constitutional law, of which the The labor militancy of 1893-1894 and

courts are the final judge. the new uses of the injunction created a

conflict of attitudes for legal progressiPerhaps the most significant indictment vism. Though legal progressives had long of the freedom-of-contract decisions came championed the workingman against the from the Far West in an article by C. B. corporation and denounced judicial interLabatt, a San Francisco attorney and fre- ference with labor laws, they were ambi-

quent contributor to legal periodicals. valent toward unionism: on the one hand, Condemning several of the court opinions progressives acknowledged the inevita-

as, variously, ‘“‘breathing the very spirit of bility of unions as counterbalances to capMr. Herbert Spencer,’’ distorted by “‘class __ ital; on the other hand, many progressives

prejudices,” and filled with “economic feared that powerful labor organization prepossessions,”’ Labatt cautioned the could crush individualism as easily as judges against building constitutional law could powerful capital organization. on the precepts of political economy. The Partly on this basis, and partly because demands of the laboring classes for legis- lawyers of all persuasions generally lative protection were bound to increase, favored protection of property from actual he predicted, and the continued interces- or potential depredation, legal progression of the courts on such doubtful. — sives such as Seymour D. Thompson had grounds could “‘scarcely fail to strengthen welcomed the early labor injunctions.34

the impression which is already widely Extreme applications of the injunction, prevalent among workingmen, that the such as the Northern Pacific orders of courts are a mere stronghold of capital.’’32 United States Circuit Judge Jenkins proWhile legal progressives were assessing hibiting the mere quitting of work,*> had

the impact of new judicial doctrines been strongly disapproved by Thompson

affecting rate regulation and labor legisla- and others.7© The Debs railway strike, tion, another new technique of judicial however, with its accompanying violence power, the labor injunction, was becom- and social excitements, seemed to coning significant. The labor injunction, first firm for these progressives the dangers of used sporadically in strike situations of militant labor unionism and the need for the 1880s, attained national prominence judicial protection. Thompson, writing in in the depression years 1893 and 1894 as July 1894, when crisis psychology was widespread industrial conflict and class endemic, castigated Debs as an “irrespon-

antagonism brought forth vigorous judi- sible vagabond” and a ‘‘fiend,’’ and

cial intervention in behalf of property and described the strike as ‘‘in the nature of a order. The climax of the labor strife of the servile insurrection’; the interventions of 1890s — and the occasion for the most the courts and the troops, he held, were

287

Legal Progressivism, the Courts, and the Crisis of the 1890s

utter necessities to forestall ‘‘anarchy”’ 1890 inapplicable to the American Sugar and “revolution.’’3? Ardemus Stewart of Refining Company, despite its more than the American Law Register, progressive 90 percent monopoly, because the comon most issues, denounced every strike as pany was a combination in manufacturing

a menace to legal right and advocated only “indirectly” affecting commerce, the “repressive legislation, the more stringent Supreme Court at one swoop negated the

the better.’’38 major intent of the Sherman Act and fracProgressive rationalism had not van- tured the national commerce power. Jus-

ished, however. Judge B. D. Tarlton, Chief — tice John Marshall Harlan, then emerging

Justice of the Court of Civil Appeals at as the Court’s leading sympathizer with

Forth Worth, while expressing disap- the progressive point of view, filed a

proval of strikes and boycotts as remedies strong dissent, attacking the opinion as for labor’s grievances, insisted that the placing the Constitution in ‘‘a condition root of industrial conflict lay in the ‘‘eco- of helplessness... while capital com-

nomic servitude’ of the masses of bines .. . to destroy competition.’’43 workers. Recommending that labor lead- The legal progressives were thrown ers concentrate their efforts on courts and into an uproar. Ardemus Stewart, the legislatures, Tarlton advocated destruc- associate editor of the American Law Reg-

tion of the trust with its ‘“‘unreasonable ister, concluded a bitter attack on the depression of wages” and a general —_Court’s decision with these words: “‘It is expansion in the scope of protective legis- enough to say that if this decision stands, lation.*° Lee Thornton of Memphis, read- and it is true that the national government

ing a paper to the Tennessee Bar is powerless to protect the people against

Association, explained that labor organi- such combinations as this... then this zations were legal so long as they were government is a failure, and the sooner not unlawfully coercive, and urged that the social and political revolution which the law “reach by summary remedy the many far-sighted men can see already calm, cool, calculating combination of darkening the horizon overtakes us, the capital, as it reaches the turbulent, impul- better.’’44

sive one of labor.”4° And Seymour D. Seymour D. Thompson was equally

Thompson, replying perhaps apologeti- infuriated: ‘“‘Such, we are told is the Con-

| cally to a correspondent’s criticism in the stitution which our fathers made for us. American Law Review, maintained that They conquered political liberty for us ‘government by injunction was better through seven years of blood and priva-

than no government at all.’’*1 tion, and then gave us a constitution

If the legal progressives were in disar- under which we are handed over, helpray in 1894, buffeted by class militancy less, bound hand-and-foot, to industrial and national hysteria, in 1895 they were and commercial slavery.’’ Although on solid ground again, with issues clearly amendment of the Constitution might be defined. For in the early months of 1895 frustrated, the Supreme Court itself, _ the judicial conservatism of the 1890s Thompson gave prophetic warning, could reached its apogee, as the United States be amended — “even by as drastic a meaSupreme Court effected the wreckage — sure as the amendment of the House of for the time at least — of two of progres- Lords by the creation of new peers.”45

sivism’s most cherished programs, prose- The sensation of the E. C. Knight case cution of the trusts and taxation of large and the bitterness of progressive reactions

Incomes. were soon overshadowed by the even The first of the great cases of 1895 was more arresting Pollock case.*° The Pollock United States v. E. C. Knight Co., 4? case declared unconstitutional the

decided January 21. By this opinion, income tax of 1894, a 2. percent tax on declaring the Sherman Antitrust Act of incomes over four thousand dollars and

288

Arnold M. Paul : : , | the first federal income tax in more than tion increased and it was settled on appeal to twenty years. The many extraordinary fea- arms and by wager of battles ... In 1895 the

tures of the Pollock case, which have owners of vast property in the North

given it a special notoriety in American appealed to the Federal courts for protection - constitutional history, need no recounting against the popular demand that they who here. It is enough to recall, among other get the benefits of government shall bear items, that the two hearings required to their just share of its expenses; and they get decide the case were both accompanied | it in this decision of the Supreme Court in by unusual press and public interest, that the income tax cases; Dives wins, Plebs distinguished counsel on both sides loses. Is the contention settled ?5° engaged in highly emotional appeals to

class and sectional partisanship, that the The attack upon the tax case was only

final vote demolishing the tax was five to —_ one facet of a mounting progressive revolt four, that this narrow margin forthe nega- _ against judicial interventionism in 1895—

tive appeared attributable to one justice 1896. The anger of the legal progressives having changed his mind between the was turned upon the increasing stream of first and second opinion, that the consti- | freedom-of-contract cases, and in particututional interpretation on which the Court lar the Ritchie case of March 1895, that hinged its decision overthrew a hundred nullified the Illinois eight-hour law for years of firmly settled precedent, and that women in garment manufacturing.5! In the four minority justices each delivered the words of one writer, the courts had forceful dissents, Justice Harlan’s being ‘disregarded elementary principles of

particularly impassioned.*” , constitutional construction’’; another The wrath of the legal progressives accused the courts of enforcing the ‘‘dun-

seemed to know few bounds. Seymour D. geon”’ of the sweatshop and overturning Thompson, writing in the American Law laws which were ‘‘the very bulwark of lib-

Review, accused the Supreme Court of erty.”>? The Supreme Court decision

continually encroaching upon the legisla- unanimously upholding the Debs injunctive power and “doing it in almost every tions,53 though seldom criticized in its case in the interest of the rich and power- own right (as noted above, most legal proful and against the rights and interests of gressives had opposed the Pullman boy-

the masses of the people.” In a stinging cott), was unfavorably regarded for its critique of ‘‘“Government by Lawyers’’ at striking contrast to the E. C. Knight and the Texas Bar Association, he warned that Pollock cases: a clear demonstration, it

unless the profession became more was asserted, of judicial one-sidedness on

responsive to the people, some mighty behalf of the wealthy classes.54 ‘popular tempest” could well bring down Accompanying these attacks upon spethe entire fabric of law and government.*® _ cific aspects of the new judicial suprem-

At the Tennessee Bar Association, Henry acy was the emergence of a wave of , H. Ingersoll, a former judge of the Tennes- constitutional radicalism. In a series of see Supreme Court,49 made this ominous articles in the American Law Review, Syl-

parallel: oe | vester Pennoyer, former Democratic-

, |Forty —years , Populist governor of Oregon, ago the owners of peculiar characterized the system of judicial _ property in the South appealed to the Fed- review as “‘usurpation’’ by “‘judicial olieral courts for protection against the aggres- = garchy,”’ first instigated by the ‘‘ plausible

sive agitation of the dominant sentiment of | sophistries’’ of John Marshall. Congress

the Christian world... and the Dred Scott should impeach the majority justices in

decision became famous on two continents. the tax case, he declared, teach the Court a

- But the contention involved in that case well-deserved lesson, and thus restore the could not abide such judicial decision; agita- Constitution to its original purity.55 Pen-

. 289

Legal Progressivism, the Courts, and the Crisis of the 1890s

noyer was soon joined by Justice Walter government by injunction as a form of Clark of the North Carolina Supreme judicial “oppression,” and a third opposCourt, advocating constitutional amend- ing life tenure in the public service except

ments which would make elective, and as provided in the Constitution.5* The for a term only, all federal judges.>° effect of these planks on the following The expanding professional protest campaign was considerable; for with traagainst judicial conservatism merged ditional symbols under challenge in both with the political crisis of 1896. As Popu- the constitutional and the monetary lists and left-wing Democrats gained fields, the conservative defense became strength, the Supreme Court was soon especially fierce and proved effective. In lumped with Wall Street and President the legal profession, men of both parties Grover Cleveland as objects of radical worked actively against Bryan, isolating scorn. Illinois Governor John P. Altgeld, the advanced progressives.*?

who had bitterly denounced Cleveland’s The campaign of 1896 turned out tobe ~~

intervention in the Pullman strike as the last peak in the crisis of the 1890s.

“Government by Injunction’? and the Shortly after the defeat of Bryan, the busiSupreme Court as “‘lackeys of capitalism,”’ ness cycle moved upward again, social

became perhaps the most powerful tension lessened, and the public was soon | behind-the-scenes figure in the Demo- absorbed in the Cuban situation. The cratic intraparty conflict.57 — trend of court decisions became, tempoThe Democratic insurgents who cap- rarily, more liberal,©° and the forces of tured the Chicago convention and nomin- social protest were channeled into less

ated William Jennings Bryan on a sensitive areas. The conflict over the

free-silver anti-Wall Street platform also courts in the mid-1890s, however, had took due notice of the judiciary. Three clearly foreshadowed the more decisive separate anticourt planks were included struggle of the 1930s, when a politically

in the platform: one criticizing the conservative Supreme Court in a time of

income-tax decision and hinting that the crisis would again arouse a formidable

Supreme Court might well be packed to progressive revolt against judicial

secure a reversal, another characterizing supremacy. ,

BLANK PAGE

ee®

Part Nine

Crime and Social Control in the Twentieth Century

The next two articles continue the explo- Rothman’s attention is directed to those ration of history of American crime and in prison — the losers caught in the web

punishment. David Rothman looks at of the legal system, convicted, and sennational attitudes toward punishment, tenced. Mark H. Haller discusses quite especially toward imprisonment, and another side of modern criminal justice. how imprisonment has become the cus- Great areas of behavior are defined as tomary method of dealing with convicted criminal under the penal codes, but they criminals. The penitentiary is an Ameri- survive and flourish nonetheless, either can invention of the early nineteenth cen- because enforcement lacks public support tury; these vast, austere prisons with their or because the ‘‘criminal” protects himstrict regimes assumed a larger and larger self through corrupt manipulation of the role in the ‘‘science’’ of penology as the criminal-justice system and political allicentury progressed and as “‘correction”’ ances. Many people grow rich off gam-

was increasingly looked upon as a branch bling and other ‘crimes,’ which thus of applied knowledge to be run by profes- provide an avenue of escape for young sionals. A further striking development of people otherwise doomed to a life in the

the same period was the rapid expansion slums. The members of the ‘criminal of professionalization linked with an underworld .. . were not outsiders.” They increase in discretionary power among had a “secure place in this new social those dealings with criminals. Discretion structure.” has always been a feature of criminal jus- In a sense, organized crime was a busitice (consider, for example, the jury). But ness like any other; it filled a need. It

_ the influence of psychiatry, the notion of offered commodities and services for sale parole, and the use of the indeterminate that people wanted, but could not legally sentence considerably increased the dis- obtain — gambling, easy sex, and porno_cretionary powers placed in the hands of graphy. Because the commodities were professionals. In the last generation, ‘‘a illegal, the business was attended by cernew and persuasive critique’ of our penal tain risks and costs, and this was one rea-

and related institutions has emerged; and son for the complicated relationships

Rothman touches on this movement as between crime and legitimate

well. law-enforcement organizations. 291

292

Crime and Social Control in the Twentieth Century

Organized crime was intimately con- Further Reading

nected with entertainment — sports, gam- : ;

bling, nightlife. Hence, it was a kind of Eisenstein, James, and Herbert J acob.

bastard child of that feverish rebirth of Felony J ushice: An Organizational Analysis moralism of the late nineteenth and early ae Co. mar Courts. Boston: Little, Brown

twentieth centuries, a movement that lanni Wr h ¢ A. 1A Family Business:

ended,;up labeling as ‘‘criminal’’ many ofControl anni, Francis “A. J. aren sage ; Kinship and Social in Organized the leisure-time activities of ordinary ,, Americans. It was a morality, in conse- Crime. New York: Russell Sage Foundation,

quence, that was purchased 1972. at heavy cost. oe Part of that price was a weakened and cor- N an ey, Raymon eae rupted system of criminal justice — a sys- _ ee na ue tem that reformers had failed to Morse, Wayne L. and Ronald H. Beattie. understand and hence could not cope Survey of the Administration of Criminal with. These problems are clearly still with Justice in Oregon. Eugene: University of Ore-

us. The contemporary ‘‘crisis’’ in criminal Boren 1982. F. Urban Police in th

justice is related both to the correctional Unit 1 St oe eas hi we New "y iL failures described by Rothman and to the onnikat Dress 197 4 asmnngnonys News , enforcement failures and reform misconceptions that Haller analyzes.

- David J. Rothman | Behavior Modification in Total Institutions: a

An Historical Overview _ -

Although the term ‘‘behavior modifica- siastically in the name of rehabilitation. tion” is of recent origin, first popularized This is no less true in our own day than it by psychologists in the post-World War II was one hundred and fifty years ago.

period, the ideal of altering the conduct of : , persons labeled deviant has a long and Promise to Cure ,

important history. In early-nineteenth- The concept of rehabilitation and the century America, ‘‘regeneration’’ and practice of incarceration are relatively ‘“reform’’ were the key words; later, “reha- modern developments, which first bilitation’’ became the fashionable expres- emerged in this country during the Jacksion. But in every period, intervention in sonian period, the 1820s, ’30s, and ’40s. In

the name of behavior modification was the eighteenth century, the criminal jusregarded as a benevolent and proper exer- tice system had been one with far more cise of authority. Nowhere has this judg- circumscribed purposes: to deter and ment had greater impact or significance incapacitate the offender and to punish _than in the field of incarceration. The gen- the sinner. The highly insular and static esis and perpetuation of total institutions colonial communities sentenced the petty for the deviant, be they state prisons or offender to the stocks, to shame him into mental hospitals, cannot be understood conformity; or whipped or fined him, to apart from the allure of reform. This goal make crime painful and costly; or banof character reformation not only shaped ished him to force some other town to the internal routine and programs of insti- deal with his behavior. For the particututions; more importantly, it played the larly heinous offender, the murderer or crucial role in legitimating them. What the recidivist who simply would not leave we might be reluctant or unwilling to do the community in peace, towns had reguin the name of retribution, deterrence, or lar recourse to the gallows. Mental illness, incapacitation, we do eagerly and enthu- to the limited degree that it evoked offi-

cial attention, was defined not as a treatReprinted from Hastings Center Report, vol. 5 no. 1 able disease, but as a special problem in (February 1975), 17-24, by permission. Copyright, relief or public order. The impoverished 1975, Institute of Society, Ethics and the Life insane who posed no threat to others were Sciences, 360 Broadway, Hastings on Hudson, New boarded with a local family at the tax-

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York 10706. on , payer’s expense; violent cases were con-

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David J. Rothman

fined to the basement of a jail or some Under the influence of this ideology,

other building. All these were essentially the institutions took their shape. They stopgap measures. They were intended to were, first and foremost, places of order protect the citizenry and to minimize and discipline. Bell-ringing punctuality inconvenience, not to cure the deviant. and set periods for working, eating, and Beginning in the post-Revolutionary sleeping characterized the schedules of War period, American attitudes and pro- both prisons and mental hospitals. The grams changed dramatically. For the first corruptions at loose in the community time the goal of intervention became were not allowed to intrude into the instibehavior modification — that is, reform of tutions. All such establishments were the criminal and the mentally ill. A heady located at a distance from population patriotic enthusiasm encouraged citizens centers. All of them had massive walls, as of the new republic to believe that no task, much to keep people out as inmates in.

however grandiose, was beyond their All of them kept correspondence between ability to accomplish. This nation unlike insiders and outsiders to a minimum. In a corrupt, monarchial European ones, could similar spirit, the courts handed down abolish crime and insanity, thereby lengthy sentences to offenders; the crimidemonstrating the superiority of its politi- nal needed long exposure to the regenera-

cal and social arrangements. Moreover, tive influences of his new environment. the Enlightment view of man as a plastic So, too, legislatures established a minicreature, shaped by his environment, mum of procedural requirements for comreplaced traditional Calvinist notions of mitting the insane. Why allow them to

innate depravity. Thus would-be languish on a courtroom bench if they

reformers had all the more reason to could be receiving effective treatment?

believe that if only the right influences The prospect of reform shone so could be brought to bear, the deviant brightly that these institutions proli-

would be cured. ferated and became the pride of the repubBut these right influences, Americans lic. One cannot find any challenge during in the Jacksonian period believed, were these decades to the wisdom of a policy of not to be found within the community. incarceration. The promise to cure made

Their open and mobile society, where state intervention not merely acceptable men could move westward to new lands but altogether noble.

or intointo thenew growing number of eastern cities, occupations or up and was . . . down the social ladder, was too chaotic Legitimation despite Failure and too corrupting to reclaim the deviant. It is not difficult to sympathize with Rather, for the purposes of reform, they this initial enthusiasm for incarceration. had to create a specially designed envi- Indeed, under the management of the first ronment, a quasi-utopian setting. In these generation of medical superintendents microcosms of the perfect society, the and wardens, prisons and hospitals were

criminal and the insane would acquire places of good order. Every observer

what they lacked, the vital habits of obe- insisted that reform was actually taking dience, discipline, and good order. These place. And when one Ohio medical superambitions eventually led to the establish- intendent announced one-hundred-perment of the state penitentiary and the cent cures in his institution, his statement insane asylum, and coincidentally, the generated applause, not skepticism. But almshouse, orphan asylum, and reforma- then beginning in the 1850s, more clearly tory. The ‘“‘total’’ character of these insti- in the 1870s, still more clearly in the

tutions, their ability to completely 1890s, it became obvious that the institustructure the environment and to order tions were not fulfilling the promises of the daily routine of the deviant, was to be their founders. Incarceration was not

the very guarantor of their success. reforming the offender or curing the

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insane — rates of crime and insanity were all, by the late nineteenth century imminot diminished by it. Worse yet, as grants had begun to flood not only our

numerous state and private investigators shores, but our prison cells and hospital discovered, the institutions were typically wards as well. These aliens were dangerovercrowded, filthy, corrupt, and brutal. ous enough in their ghettos; when they Now one learned about wardens who flouted the law or went insane, incarceraexploited for their own profit the labor of tion seemed an appropriate solution. No convicts and of the prevalence of horrible matter how miserable institutional condipunishments behind the walls. One reads tions were, they were decent enough for these revelations today with a certain ten- the Irish — and then, later, decent enough

sion: after absorbing one hundred for the blacks.

detailed pages of gruesome discipline, of Still other reformers believed it right inmates hanging by their thumbs for and just to defend the idea of incarcerahours on end or stretched out on racks of tion because of their own very special medieval design, one wonders how state reading of history. Their view of the past legislators will conclude their report. Will trapped them into defending existing reathey pronounce incarceration an experi- lities instead of inviting them to devise ment gone bad and search for alterna- alternatives. As they saw it, in half-truth

tives? Will they ring the bell on this fashion, incarceration in the 1820s and

venture and call for anew departure? 1830s had replaced a fundamentally cruel Invariably they did not. One state com- and barbaric system, one in which all mittee after another, one benevolent soci- criminals went to the gallows and all the

ety after another, one professional insane were chained in jails. Hence these organization after another recounted the reformers feared that if incarceration were

abuses and denounced the barbarisms. eliminated as a public policy, the nation Then they urged the construction of big- | would automatically and immediately ger and better institutions. More cells, revert to those loathsome practices. It was more wards, more humane administra- the dungeon and the gallows, or it was the tors, more skilled guards and attendants _—_ institutions. Faced with such a choice, — these were their recommendations. The reformers believed it the better part of faults lay, they argued, not in the policy of wisdom to work for the reform, not the incarceration but in its implementation. abolition, of institutions. Finally, they The concept was marvelous; it was prac- suffered a failure of nerve and imaginatice that had to be improved. How did tion; frightened of the future, they accomthey arrive at this judgment, justify it, and modated themselves to the present.

explain it? Why did these men so dog- The legitimacy of incarceration in this gedly defend the institutions? How was period was further rationalized by the the legitimacy of incarceration preserved skillful way in which prison and asylum

once the grim reality had become so managers juggled incapacitation and

apparent? rehabilitation. When challenged for not

For some observers and commentators, fulfilling the goals of reform, they justithe goal of reform was so noble that a pro- fied procedures on the grounds of incapa-

gram linked with such a goal, however citation. The institutions confined

tenuously, could not be abandoned. The dangerous people, protecting society from rhetoric of rehabilitation was enough to the havoc they would cause. But when justify the continued investment in incar- questioned on the propriety of confining ceration. If they incessantly reminded the those who were not especially dangerous, managers to strive to this end, perhaps they shifted to rehabilitation. The instituthen the institutions would measure up. tions treated the deviant and released him

For others the convenience of incarcera- when cured. It was a masterful tactic tion, its very functional qualities, legiti- which kept critics off balance and premated the institutions’ existence. After vented them from attacking the system

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David J. Rothman , ,

itself. The weakness of a defense that in the system itself. The problem rested joined together two such divergent goals, with a poorly trained staff or inadequate that claimed that institutions could simul- resources, not with the policy of incartaneously incapacitate and rehabilitate, ceration. There was a Sodom-and-Gomor-

went unnoticed. : rah quality to this rationale — if ten good Those in the best position to mount an men could save a city from God’s wrath attack upon incarceration — state officials then one good institution could salvage and medical professionals — played a the entire network of institutions. In this more supportive than antagonistic role. period, New York’s Elmira Reformatory By the 1890s, most states had established served as the model. Its graded system of

boards of charities and correction to classification and its work and early

, investigate institutional conditions; release procedures seemed to high-

invariably the members of these boards minded observers to set the standards were unwilling to question the legitimacy which other institutions should meet. of the system. When particular abuses Whatever message the nine hundred came to light, they preferred to sit down ninety-nine failures had to transmit about with the directors and managers and talk _ the inherent limitations of the system was

things over man to man, gentleman to drowned out in the chorus of admiration gentleman. In training, outlook, and class for the one good prison — a mode of the state board members and the asylum thought from. which we are no more directors were alike; with good will immune than our predecessors. The result assumed on both sides, particular difficul- was to confirm the idea of building bigger

ties could surely be overcome. There and better institutions, not to raise doubts

seemed to be no cause for launching a about the wisdom of a policy of

fundamental attack on the way a peer con- confinement.

ducted his business, especially when the a | other option was to ally oneself with the The Impact of Psychiatric Thought dangerous immigrant classes. |

A devastating critique of the failures of _ About 1900 a third stage emerged in the the mental hospitals might have come complex relationship between the ideal of from the growing number of neurologists behavior modification and the history of in the late nineteenth century. To be sure, ___ total institutions, a stage that has perneurologists did attack the medical super- sisted almost to the present. The most disintendents for ignoring research, for not tinguishing characteristic of this period running better pathology laboratories, for was the crucial influence of psychiatric not examining more carefully the somatic thought in both mental health and crimibasis for mental disorders, but they had nal justice. These years witnessed the no quarrel with the idea of incarceration general triumph of the ‘“‘medical model.” itself. Their advice on how to administer These new doctrines evoked an optian institution differed little from the prac- mism reminiscent of the Jacksonian era.

tices of the medical superintendents. AI Psychiatrists and their social-worker that the neurologists wanted was more allies promised to reduce substantially, if laboratory space in the asylums, not a not to eliminate altogether, the problem of

basic change inthe dailyroutine. | deviancy. They would uncover the psy-

Finally, the legitimacy of incarceration chodynamics of the deviant personality received additional support from the exis- and explore the psychological processes

tence of “model’’ institutions. If nine that made persons mentally ill or crimihundred ninety-nine institutions failed to nal. Then, in therapeutic encounters, the live up to standards but one did, then the doctor would review and explain these

nine hundred ninety-nine failures dynamics to the patient, assisting him to

| reflected faulty administration, not a flaw adjust successfully to his environment.

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The encounter itself, not an institutional grams, were created during these years. A routine, would be the instrument of reha- brief period of confinement would be fol_ bilitation. Accordingly, the new theories lowed by a longer period of treatment looked to the community and away from after the patient returned home.

incarceration as the treatment center of , ,

firstresort. | Expansion of Discretion | But at the same time the psychological doctrines encouraged a massive expan- Yet rationales and practices that ini-

sion of the mental health and criminal jus- tially promised to be less intrusive and

tice systems and, in doing so, extended less onerous nevertheless served to the power and reach of doctors, wardens, encourage an extension of state authority.

superintendents, and judges. Even more The impact of the new ideology was to troubling than this expansion was the cre- expand intervention, not to restrict it.

ation of a new category of deviancy. The medical model stimulated and legi-

Implicit in the pledge to cure some of the timated a vast increase in discretionary deviants was the definition of another decision making. ‘Treat the criminal, not class of persons who were beyond assis- the crime,” became the slogan; the system tance, persons who, because of their was to concern itself not with the “act” of inherited physical deficiencies or the the offender but with his “state of mind.” gross character of their malady, were Hence, the interventions that were appro-

unable to respond to a therapeutic priate for one type of offender were not

encounter. For them extended confine- necessarily appropriate for another — and ment, perhaps even life-long confine- officials had to have the leeway to decide ment, was the only alternative. Thus, as among them. Under the impact of this

psychiatrists encouraged opening the doctrine, the indeterminate sentence

door of the asylum partway for some, they flourished, expanding the prerogatives of , simultaneously helped to close it more judges and parole boards. Instead of legis-

firmly behind others. The promise to latures continuing to set fixed terms for an ,

rehabilitate did move society away from a offender — three or four years for a burtotal reliance upon incarceration, but by glar, for example — they now established the same definition, it legitimated its pro- widely divergent minimum and maxi-

longed use. mum terms — two years to eight — and The prospect of a cure through a thera- left it to the judge to make his choice. The

peutic encounter helped to create the first judge exercised his discretion: in one alternatives to confinement. Probation case, he could settle on a sentence of two was one by-product. Some criminals did to four years; in another identical one, he not need to enter a prison; rather, the pro- could choose a term of three to eight. bation officer-social worker would be able Then, in turn, he passed on to a parole

to rehabilitate the deviant within the com- board the discretion to select the moment

munity. Parole was another. Convicted for final release. It could discharge the

offenders could be released from prison to inmate at the minimum term set, or mid- —

the supervision of a parole officer-social way through his sentence, or at the expiworker; in weekly meetings they would ration of the maximum. Thus in the name explore and eliminate the psychological of treating the criminal not the crime the roots of disturbed behavior. Concomi- justice system became unpredictable and tantly, the first outpatient mental-health ultimately arbitrary. And whatever ineclinics sprang up. Instead of committing quities occurred were interpreted as a the mentally ill to an asylum, psychia- _ necessary and proper by-product of indi-

trists would treat them within the com- vidualized treatment. , munity. Psychopathic hospitals, An enlarged definition of the type of

dedicated to short-term and intensive pro- information considered necessary for

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David J. Rothman

decision making also took hold during reacting to events buried deep in his past; this period. If the system was to treat the that trauma at age three is still with him at criminal, to decide who should go on pro- age forty — it is as if time had not passed. bation and who should make parole, then Thus, they are often reluctant to predict officials had to know the most intimate how long therapy will take, indeed to say details of the offender’s life. To this end, how long therapy should take. And this psychiatrists and social workers compiled concept of time, imported into determinapre-sentence reports and parole dossiers, tions of sentence length and commitment

including data on the offender’s family terms, helped to expand the period for life, his relationship to his parents, how which intervention was permissible. If he got on with his wife and friends, the indeterminate sentences proved to be

level of his occupational and educational longer than fixed ones, if commitments in _ training, his work history, his social atti- state hospitals were for five or ten years, tudes, his feelings, and his IQ score. His the rehabilitative process demanded it. fate now hinged, not on what he had Once again, psychiatric doctrines worked done, but upon his motivation, his atti- to break down, not to build up, clear and tudes, and his psychological state. There defined limits. was nothing private left to the individual, The rehabilitative ethic also expanded the system had aright and aneedto know the reach of the criminal justice and meneverything. This probing without limits —_ta]-health systems, bringing new sectors was not seen as an intrusion into privacy of the population under supervision and or violation of personal rights. Since the —_ treatment. Programs designed in the first goal was rehabilitation, the means were _ instance as alternatives to incarceration

_ legitimate. Just as the doctor was entitled quickly developed into supplements to

to compile a social history in order to incarceration. It appears, for example,

diagnose and cure the sick, so the psychi- that probation did not reduce the number atrist was entitled to compile a social his- of offenders confined to state prisons. tory in order to diagnose and cure the Rather, it gave judges the opportunity to

deviant. place under supervision a class of perMoreover, it was the psychiatrists’ defi- | s9ns who otherwise would have received nition of time that ruled in criminal jus- suspended sentences or release under tice and mental health: not the particular their own recognizance. So, too, the first and exact measurement of time — sec- outpatient mental-health clinics seem not

onds as well as minutes and hours — to have reduced hospital populations.

which now marked both work and playin Instead, they serviced members of the industrializing America; not even ‘‘medi- community who heretofore had: not cal time.” For surgeons, after all, think of | received treatment. It may well be that intervention in terms of minutes. The these persons profited from the intervengood surgeon is the quick surgeon, one __ tion, that probation and community

who will boast of being in and out in clinics provided useful supporting ser-

- twenty minutes. But psychiatrists work to vices. But the point remains that these a different clock. Psychiatrists will mat- innovations probably did more to enlarge ter-of-factly admit that it took a year and a the network of clients than to provide half to overcome a patient’s resistance to _ practical alternatives to total institutions.

therapy. A four-year therapeutic

encounter is considered average; weeks of Incarceration further Legitimated

bad sessions must be expected; even years

of bad sessions must be tolerated. After In a curious way, the new programs all, psychiatrists accept a theoretical con- actually enhanced the legitimacy of state

struction that is very fluid about time. The prisons and mental hospitals. The patient is ill precisely because he is still process worked in two ways. First the

299

, Behavior Modification in Total Institutions existence of new programs encouraged nity. The Jukeses and Kallikaks were the public to believe that those behind nightmare families whose threat to the the walls undoubtedly belonged there. If social order had to be eliminated at all

the offender was tractable, he would be cost. In part, these developments

freed on probation; if he had learned his reflected an acute concern about crime lessons, he would be released on parole. waves. Crime seemed to be increasing so If the mentally ill were manageable, they rapidly that life in the nation’s cities

would be in outpatient clinics, or, at would soon become intolerable unless

worst, in psychopathic hospitals. There- some drastic measures were adopted. But fore, anyone still found inside a prison or probably more basic to an understanding

state mental hospital was simply too dan- of these changes was the fear that the ~ gerous or too bizarre to stay in the com- new release procedures would allow the munity. Second, the institutions could hard-core deviant, the retarded, the pro-

now present themselves as testing fessional criminal, and the sexual psygrounds for social adjustment. Once the chopath to return easily and quickly to prisoner behaved well inside, he could the community. Just when probation,

be trusted to behave well outside; once parole, and out-patient clinics were being the patient functioned adequately within established, the state also created instituthe hospital, he would function ade- tions for long-term commitment, in effect quately outside it. Both perspectives gave providing for preventive detention. powerful support to a policy of incarcera- Psychiatric theories and the psychiation. The institutions had accepted the _ trists themselves played a crucial role in challenge that the community refused. making this procedure appear legitimate, They held the hard-core deviant until he indeed constitutionally acceptable. Prac-

was cured. tically every institution for the retarded

It was not a long step from this conclu- and for the defective delinquent was sion to a compelling justification for life- headed by a psychiatrist. The simple long commitment. And this step was logic of the situation made this an odd taken in the first decades of the twentieth choice. By definition, the retarded and century. Between 1900 and 1920, institu- the defective delinquent were beyond tions for the permanent confinement of psychiatric assistance. Typically the the mentally retarded proliferated. In institutions that held them were farms on 1890 there were fourteen institutions for which they carried out menial agriculthe retarded in this country; by 1910 tural chores. A skilled administrator, a there were twenty-six, and by 1923, forty. competent businessman, or a farmer In the 1920s and 1930s, numerous states would have been a more sensible choice passed their first habitual-offender laws, than a psychiatrist to superintend such

providing life sentences for third-time places. Why, then, this choice of a

felons. Simultaneously they created the psychiatrist? first institutions to confine indefinitely To a degree, the decision may reflect the defective delinquent, that class of our society’s predilection for giving over persons with low IQs and high recidi- the care of the “dying” to a doctor. The vism, and sexual psychopaths, that catch- medical profession does assume respon-

all term for the dangerous and the sibility for those suffering from chronic

disturbed. illness; hence, by extension, they should In part, these developments reflected have responsibility for the chronic

the new popularity of eugenic theories. deviant. Furthermore, the rationale for Americans were panicked at the prospect preventive detention rested on the of defectives multiplying themselves and deviant’s state of mind, not on any partic-

passing on their incapacities until their ular acts he might have committed. numbers eventually overran the commu- Therefore, it seemed appropriate to let

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David J. Rothman , , , the expert in states of mind head up the improvement within incarceration are institutions. Moreover, the vast discre- well-nigh endless, from the administration allowed by the law in selecting per- tive hierarchy to the quality of the staff, sons for this type of incarceration might to the nature of the daily programs, the have been challenged as arbitrary and ability to transcend this particular angle capricious unless it was exercised by of vision and achieve a more generalized someone with impeccable and impres- analysis is genuinely impressive. sive credentials. Finally, the choice of a Part of the credit for this breakthrough psychiatrist helped to dress preventive belongs to such theorists as Erving Goffdetention in the garb of rehabilitation. If man. His study, Asylums, argues comthe retarded or defective delinquent pellingly that the inherent characteristics could possibly be reformed, then the psy- of total institutions make impossible the

chiatrist would do it; and if he could not achievement of rehabilitative goals. A

treat them, then confinement was an series of sociological studies has also

appropriate policy. In other words, the been important in demonstrating the faillink between incarceration and rehabili- ure of existing penal programs. These tation was unbreakable. When forced to findings have influenced a wide and justify extended commitments, officials diverse group of observers. The contemcould raise the prospect of cure. When porary dissatisfaction with incarceration confronted with the fact that the institu- does not follow political lines. It includes tions were not treatment centers, that the conservative as well as liberal members staff of professionals was pitifully small, of government commissions, left-wing and that rehabilitation programs were writers and former wardens, psychiatric practically nonexistent, then they could superintendents and federal judges. vividly describe just how dangerous their And yet for all the novelty and popuinmate population was. As we shall soon larity of this perspective, for all the unasee, this equivocation is no less prevalent nimity in calling for a moratorium on the today — and frequently the public role of construction of new institutions and for a the psychiatrist is not altogether different reduction in the number of inmates and

either. , , patients, there is little cause to believe | ! es, that our long and grim history of incar-

A New Critique _— ceration is nearing the end, that state

, os intervention will decline. The anti-insti-

Since the mid-1960s, a new and per- tutional program is vulnerable in several

suasive critique of total institutions has important respects. cas

emerged. Rationales that once buttressed First, it is a faint trumpet that now

the practice of incarceration now seem calls us io reform. The attack upon incar-

flimsy. As faith in the ability of total ceration is generally a negative one, a institutions to rehabilitate the deviant dissatisfication with current arrangehad declined, so has support for incar- ments, without any promise that alternaceration. For the first time, reformers are tives will promote massive cure. Unlike not focusing their attack on the inadequa- the first promoters of asylums, the new cies of one particular institution or the breed of reformers does not claim to be

failing of one group of administrators but able to rid the streets of crime or the comon the very idea of confinement. Unlike munity of mental illness. Their aims are

their predecessors, who invariably more modest: to reduce the harm done by

responded to scandals by calling for big- intervention, to lower the costs of care, to ger and better prisons and asylums, and make treatment less cruel and inhumane. greater state intervention, critics today — Their goals are sensible and decent, but are blaming the system, not its wardens not dramatic or glamorous.

or superintendents. Since the arrange- Further, the first attempts to bring the ments that are ostensibly susceptible to incarcerated back into the community

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have not been without drawbacks of their them. Some psychiatrists insist that the own. Although the experiment is only a environment of a total institution or the few years old, there is mounting evi- compulsory character of treatment within dence of a backlash. To date reformers it need not weaken efforts at rehabilitahave been more concerned with empty- tion. They insist that group-therapy ses-

ing the institutions than with thinking sions with inmates. whether conducted through the modes of community care by more orthodox psychiatrists or

and treatment. Activist lawyers won the encounter-group leaders, can work well; major legal battles which helped reduce they argue that if psychiatrists hold the institutional populations — it was not, key to release from confinement, if the however, within their skill or province to inmate must reckon with the fact that design alternatives. In addition, many either he cooperates with his doctor or observers are so shocked at the inade- remains inside, then progress is all the quacy of institutional conditions that more likely. (Many of the staff at Patuxthey feel compelled to press for immedi- ent, Maryland’s institution for defective | ate reduction in the numbers of the incar- delinquents, subscribe to this position.) cerated and to leave for later the problem Still other psychiatrists find this to be an of alternatives. (In the words of one cru- appropriate time for wide-open experi-

sading psychiatrist, when you have mentation with all kinds of therapeutic

Buchenwald, you don’t worry first about techniques, proven or unproven, tradialternatives to Buchenwald.) But the tional or novel. Perhaps effective treat_ effect of these approaches, particularly in ment will emerge from the work of drama

the field of mental health, has been to therapists, or Synanon-type models, or force ex-patients into settings almost as human-resources-development-type bad as, and in some cases perhaps worse models, or in heart-to-heart discussions than, the institutions they have left. And between cons and ex-cons. (The plans for

tolerance for the deviant, no matter how the new federal treatment center at

harmless he may be, is very limited; com- Butner, North Carolina, illustrate this

munities simply will not, in their own approach.) And finally, there are the

terms, gamble with safety. Hence, before behavior modifiers in the strict sense of

nonincarcerative programs are able to the term, the most aggressive and optilearn from their own mistakes, they may mistic of the lot, those persuaded that

be put out of business. — operant conditioning holds the key to

A still more significant development, effective cure. Convinced that they can whose thrust is much more pro-institu- curb the eating habits of the overweight tional and conducive to maximizing state and eliminate the cigarette habit of the intervention, is the burgeoning faith in chain smoker, they stand ready to apply the power of behavior-modification tech- their skills to the deviant. niques to rehabilitate the deviant. Not To date most of their efforts have been

everyone, it seems, is so pessimistic applied to the hard-core deviant, the

about the prospects for cure. Indeed, at a institutional dregs, the toughest cases. In time when so many others are abandon- Connecticut’s prison at Somers, behavior ing the goal of rehabilitation as an unrea- modifiers have used their techniques on

listic and ultimately a mischievous one pedophiles, the child molesters who so upon which to base public policy, those shock the community conscience that who claim to have answers, those who they typically remain incarcerated for present themselves as problem solvers, decades. In Clockwork Orange fashion, receive a very attentive and enthusiastic the behavior modifiers attach electrodes

audience. oe to the inmate’s skin, flash on the screen - The optimism comes from several pictures of nubile and naked boys and quarters, and the term ‘‘behavior modifi- girls, and then simultaneously apply cation” does not fit easily over all of electric shock. They have also intervened

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with the most troublesome inmates in the in the area of incarceration to confirm _ federal-prison system. At the Springfield, this view. Federal courts have intervened Missouri, treatment center, the behavior — in the conduct of state mental hospitals, modifiers took inmates with long records and helped to empty their wards, preas troublemakers in other federal prisons, cisely because judges found that treatthose who had spent months in solitary ment was not being conducted. But the

and disciplinary cells, and placed them “right to treatment’’ doctrine is a twoin the START program. Through a care- edged sword. If the ratio of staff to ful meting out of rewards and punish- patients is high, if the rhetoric is one of ments, they promised to turn them into rehabilitation, if there are ‘treatment obedient inmates and, ostensibly, obe- plans” for the patient, then the institu-

, dient citizens. tion will receive the courts’ blessings, Because they have worked with the even if patients are not actually being hard core, the behavior modifiers can cured. The institution at Patuxent, for argue more or less in good conscience example, has won numerous legal conthat, however unpleasant their tech- tests because the judges were impressed niques, the inmates otherwise confront with the good intentions of its adminisan even worse fate. You may not like trators and the number of professionals shock conditioning, but remember that on its payroll.

the alternative is to keep pedophiles Moreover, while the federal courts

locked up forever; the START program have struck down as _ unconstitutional may be rough, but surely it Is no worse many prison practices, from prohibitions than months in solitary. They further 6p Jetter writing to barbaric solitary cells,

| argue that nothing else works with this they have often done so because they segment of the deviant population. Just = Cguld find no rehabilitative purposes to

as doctors will use experimental drugs the measures. But these decisions leave on terminally ill patients, so, too, behav- the door wide open to procedures that ior modifiers should be allowed to use can enter under the guise of rehabilitatheir techniques on the chronic deviant. tion. “A prison regulation,” declared one We have nothing to lose, they tellus,and — recent court decision, “restricting free-

much to gain through their efforts. dom of expression would be justifiable if

ease as its purpose was to rehabilitate prison-

Another Turn for Rehabilitation? ors.” Announced another: courte will | One ought not for a moment to mini- keep their ‘“‘hands off’’ prison administramize the power of this appeal. Since the tion as soon as officials attempt to rehaalternatives to this type of intervention | Dbilitate inmates. When Texas prison

are so unsatisfactory, many officials, officials defended their solitary cells as administrators, and judges are prepared places of treatment, a federal court to let them have their turn. To be sure, allowed them to continue: ‘‘Our role as the START program was canceled by the judges,” it stated, “is not to determine

Federal Bureau of Prisons just as it was which of these treatments is more rehabiabout to lose a court challenge on the litative than another.” In short, the ideal constitutionality of its procedures, and at of rehabilitation remains so attractive and least for the time being, the bureau has appealing, that one cannot be too cauprohibited further behavior-modification tious about any procedure that attempts programs. But there is little cause for | to come under its umbrella. complacency. Any program that can link We are not the first generation to con-

itself to the ethic of rehabilitation still front the mischief that can be perpe-

stands a good chance of implementation. tuated in the name of rehabilitation. The One need look no further than recent, historical record of behavior modification

and enlightened, federal court decisions and total institutions does alert us to

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Behavior Modification in Total Institutions —

many potential danger points. First, as one institution is able to bring more benbehavior modifiers attempt to win accep- efit than harm to its inmates, or that a tance for their programs, and attempt system constructed on its principles will they surely will, we should be especially function well. We must ask whether the sensitive to the perils implicit in the model is exportable, whether other instiassumption that, since the existing sys- tutions will live up to the standard. We tem is so rotten, any alternative should must concern ourselves with the uninbe given a try. Such a perspective places tended consequences of legitimating this

the burden of proof, not on the innovator, mode of intervention.

where it properly belongs, but on the Finally, we must be acutely aware of

critic. An attitude of “if not me, the gal- the issue of trade-offs. If behavior modifi-

lows” can end up creating worse night- ers promise to release one class of

mares than those we now live with. So, inmates at the expense of keeping others too, a willingness to accept the promise in for extended periods of time, we must to do good as the equivalent of the ability recognize the dilemma and make our

to do good is certain to legitmate a choice in full cognizance of the implicanetwork of intervention schemes which tions. If Patuxent officials tell us that

would otherwise be suspect. some persons, who at another institution - Second, we must insist on distinguish- would have been incarcerated for thirty ing between such diverse and mutually years, leave their institution in only five, antagonistic goals as custody and rehabi- we must remember to ask about the litation. We cannot permit administrators others, those who might have been conto slip so conveniently from one rationale fined elsewhere for only five, and end up

to another. If we choose to hold some spending thirty at Patuxent. So, too, persons in custody, let us call it that and those committed to operant-conditioning decide whether we as a society are will- techniques may come up with their own

ing to pay such a price in civil liberties | trade-offs. They may ally themselves for the sake of our safety. But we cannot with the anti-institutional position, debate preventive detention if it calls promising to release in one year those we itself rehabilitation, and if we are incar- normally confine for five, and to release cerating people for treatment purposes, them cured. Here we must remember not - then let us measure the effectiveness of only to query the promise of results, to treatment, not hide behind the claim that insist upon scrutinizing research find-

these people are dangerous. ings ourselves, but to calculate whether

Third, we must not let the credentials in all probability such techniques will of an administrator substitute for per- spread the net of state intervention still formance. The presence of a doctor as wider without actually reducing instituhead of an institution is no guarantee tional populations. The dismal experithat treatment will occur and no guaran- = ence of the first probation, parole, and tee that ethical standards will be adhered outpatient procedures ought not to be to. Fourth, we must be especially wary of repeated. A historical overview, unfortu-

“model” programs. There is not suffi- nately, does not provide any firm

cient cause to assume that all such pro- answers to the problems we face. But at grams will be effective and decent simply least it can help us to ask the right

because one charismatic personality questions. manages to effect some good, or because

Mark H. Haller | | | | Urban Crime and Criminal Justice: The Chicago Case

The history of crime and criminal justice crime, criminal justice, and reform in Chiin American cities is a topic that has cago from 1900 to 1930 raises many of the remained relatively unexplored by profes- important questions and problems that sional historians. Yet its importance is require historical exploration.

clear. Crime has had enduring ties with During the period, a variety of

urban political factions, played a crucial reformers conducted intensive and often part in the social life of ethnic groups dramatic campaigns to reform the crimistruggling upward in the urban slums, nal-justice system. To the extent that his-

been linked to labor and business activi- torians have examined such reform ties, and made urban life dangerous. The movements, they have tended to accept police, the courts, and other criminal jus- — the reformers’ views of the system’s defi-

_ tice institutions have performed various ciencies. The reformers, however, lived functions. They have provided favors for largely outside the world of criminal jus-

) political factions, been under pressure tice, and often held values and expecta- _ from some groups to eliminate pleasures _tions that were incompatible with the

enjoyed by other groups, and always had _—s expectations of persons who were a part such meager resources that criminal jus- — of the system. As a result, reformers often

tice has often involved regulation rather |§ misunderstood both the system and the than abatement of criminal activity. impact of their reforms. Finally, campaigns of civic leaders for law Criminal justice involved a working and order are far from modern, and these ___ relationship among three groups: offi-

campaigns have often revealed much cials, such as the police, prosecutors, about the values of reformers and the judges, bailiffs, and probation officers; structure of urban society. An examina- mediators between the legal system and tion of the complex interrelations of | criminals, such as bail bondsmen, crimi-

| , nal lawyers, fixers, and politicians; and

Reprinted from the Journal of American History, 57 finally, criminals, whose behavior was (1970), 619-635, by permission. Copyright, 1970, influenced by contact with enforcement

Organization of American Historians. officials. These groups, by frequent con304

305

| Urban Crime and Criminal Justice tact, developed diverse informal relation- analysis, can be seen to consist of three ships and mutual obligations. In order to types: professional thieves, business or

understand how the criminal-justice sys- labor racketeers, and participants in tem actually functioned, it is as important organized crime. to understand the criminal-justice subcul- Professional thieves included pickture as to understand the characteristics of pockets, shoplifters, burglars, jewel

the formal system. thieves, confidence men, and other speIn Chicago, criminal activity and the cialists. They had a loose subculture of criminal-justice system were rooted in the their own. They met in hangouts,

city’s ethnic neighborhoods and were exchanged gossip and information, devel-

means of social mobility for persons of oped their own argot, and generally

marginal social and economic position in accepted a common system of values in society. (The ethnic political machines terms of which they awarded prestige and

served the same purpose.) As a result, governed behavior among themselves. criminals, politicians, and enforcement The probable extent of professional crime | officials often shared common experi- in Chicago is illustrated by the fact that a

ences and values. , city-council committee on crime in 1915

According to a 1930 study of 108 direc- was able to locate one hundred criminal tors of the Chicago underworld, 30 per- hangouts and three hundred ‘‘fences”’ in

cent were of Italian background, 29 the city.

percent were of Irish background, 20 per- Professional thieves often developed cent were of Jewish background, and 12 relatively stable relations within the crimpercent were blacks; but “not.a single inal subculture and with other segments

leader was recorded as native white of society. Most such criminals worked American of native born stock.” A few with a mob. The mob often maintained groups virtually monopolized the upper continuing relations with a fence, in order levels of crime in Chicago.! Official posi- to dispose of stolen goods, and also with a tions within the criminal-justice system lawyer, fixer, or bail bondsman, for assis-

were also distributed largely among the tance in case of arrest. Professional

same groups. As might be expected, 76 — thieves might also develop special relapercent of the police captains were Irish. tionships with policemen or politicians.

Judgeships were a reward for party ser- The 1915 city-council committee, for vice, and each party slated judges so that example, had three of its investigators the various ethnic groups in the city pose as pickpockets newly arrived in the would be represented. Judgeships often city. The alleged pickpockets soon made

provided social mobility for lawyers contact with a city detective who whose training at unprestigious law explained the best place to practice their

schools or whose ethnic or religious back- trade, put them in touch with a reliable ~ ground denied them admission to leading fixer and fence, and then provided them

firms. Indeed, most of the positions with on-the-job police protection in

within the system, elected or appointed, return for 50 percent of the take. For

were rewards for party service. Politicians nearly thirty years one of Chicago’s best-

within the urban political machines known thieves, Eddie Jackson, was called looked upon the criminal-justice system the ‘Immune Pickpocket.’’ In part, he as one of many means of maintaining the earned his immunity through services to a

political organization. political faction; on election day he was in Most of the people processed by the charge of a band of voters who voted early criminal-justice system were the unorgan- and often.4

ized offenders: juvenile delinquents, There are a number of accounts of the drunkards, wife beaters, and amateur underworld of professional thieves, based thieves. Other lawbreakers were part of mostly upon the reminiscences of indi-

the more organized underworld. The vidual thieves, but almost nothing is organized underworld, for purposes of known about changes in the underworld

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Mark H. Haller

of thieves. For example, what explains the systematic aspect of underworld activity, fact that in 1929 most pickpockets in Chi- with an on-going and pervasive impact cago were of Jewish background, while upon criminal justice. The man engaged most confidence men were Anglo-Saxon in organized crime was set apart from the Protestants? And what changes have professional thief because he had customtaken place in recruitment and operations ers, not victims. The need to develop con-

of professional criminals since then? genial, long-term relations with

How, indeed, have changes in technology customers was itself a factor leading to and consumer tastes affected the opera- systematic organization of the enterprise.

tion of thieves?5 The customers, in fact, were often co-con-

Racketeering in business and in labor spirators in the violation of law. Indeed. - unions took several forms. One was con- the distribution and sale of alcoholic bevtrol over a labor union for personal profit, erages in Chicago during prohibition either by misuse of the union treasury or resulted in widespread public recognition by agreeing to negotiate ‘“‘sweetheart”’ of the wealth and customer support that contracts. An even more fully developed characterized the city’s underworld.® cooperation between union racketeers = In many ways organized crime resem-

and employers occurred when the union, _bled a legitimate business. It often

by strikes or by violence, helped to main- included a substantial capital investment, tain prices among firms or drive out com- a regular payroll, and problems of manu-

petitors. Another form of racketeering facture, distribution, and retailing. For consisted of using violence in order to example, in various phases of gambling persuade small businesses to purchase a there were internal factors that led to particular product. In the late 1920s, for coordination. Bookmaking required a example, many taverns and similar estab- —_ wire service. From early in the twentieth lishments in the Chicago area were forced century, Mont Tennes monopolized wire

to accept slot machines.® services. Using this as a basis — but also | Little is known about racketeering in employing political connections and American labor unions and small busi- —_ occasional violence — he gained control

ness enterprises. But in Chicago, racke- of most bookmaking in Chicago and

teering was endemic. George ‘‘Red’’ — extended his influence through much of Barker, who by violence and threats took the United States. Most forms of gambling over thirty-three unions during the late also had economic aspects that contri1920s, enjoyed local fame. By the early buted to consolidation. Since a small-time 1930s members of the Capone organiza- — gambler lacked the capital to cover his tion appeared to be involved in a system- losses on a bad day, the local bookmaker atic attempt to dominate vulnerable or policy man was part of a larger organiunions. Racketeering elements had also zation that handled financing and proteccome into control of a variety of trade tion. According to one estimate made in associations: barber shops, miniature-golf the late 1920s, three hundred policy writcourses, kosher butchers, junk peddlers, ers worked for a single wheel in Chicago’s and many others. The types of businesses black ghetto, and there were more than six —

that came under racketeering control thousand policy writers in the ghetto.? often shared two characteristics. They The need for protection also led to coorwere small, relatively marginal, and pow- dination of organized criminal activities. erless; and they were highly competitive, In the early years of the twentieth century, so that racketeers performed an economic —__Chicago’s red-light district achieved well-

service by regulating prices and competi- deserved fame, based on the high quality

tion.’ of its better houses and the wide variety of

Organized crime, the distribution and services available. Those classic aldermen sale of illegal goods and services, such as from the First Ward, Michael ‘‘Hinky gambling, prostitution, narcotics, and, in Dink” Kenna and ‘“Bathhouse John’’ the 1920s, booze, was generally the most Coughlin, presided over political protec-

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Urban Crime and Criminal Justice

tion of vice in the ward. Saloons, gam- the night life of the city, for the leaders of bling houses, and bordellos provided the the underworld were both participants in funds that nurtured the aldermen’s politi- and sponsors of the restaurants and clubs

cal organization and paid enthusiastic around which the night life revolved.1! , workers who supported the party’s efforts The relations of the criminal underon election day. In addition to arrange- world to other segments of the city’s ments with Hinky Dink and Bathhouse social structure were highly complex.

John, operators also made business Reformers, in attempting to alter the

arrangements with the local police. Pro- criminal-justice system, faced opposition tection not only exempted some enter- partly because the public desired the serprises from police interference but also vices provided by the underworld, partly became part of a process for eliminating because of the ethnic and class loyalties competition. Those who were not part of that racketeers and criminals could some-

the protection arrangement would be times summon to their defense, and

raided and harassed. The protection partly because of the entrenched relationarrangement, in addition, involved agree- ships of criminals with politicians and ments for regulating fraud and violence, with the criminal-justice system. In conboth in order to give customers confi- trast to those who staffed the institutions dence in the product and to avoid open of criminal justice, reform leaders tended scandal that would embarass law-enforce- to be Protestant and native American in ment agencies. Thus the stable and sys- origin. Moreover, the reformers lived in tematic relationships with politicians and upper-income areas dominated by native

police protected criminal activity and Americans: the Hyde Park and Wood-

served the economic functions of regulat- lawn areas surrounding the University of

ing competition and fraud. Chicago, the Gold Coast along Lake Throughout the period, underworld fig- Michigan, and the elite northern suburbs.

ures held important positions as civic | Even the attorneys and law professors leaders and political brokers. In addition who were reformers had little in common

to the relationships based on mutual with the lawyers who practiced criminal

interest and favors that linked the under- law; indeed, they often did not bother to world to enforcement officials and politi- conceal their contempt for the training cians, there were friendships and ethnic and ethics of the lawyers who practiced

loyalties that linked gangsters to seg- regularly in the criminal courts.

ments of legitimate society. The members Reformers, then, approached criminal of ethnic groups who achieved success in justice with values and life experiences business, politics, or the professions often that differed from those of city politicians had ties with gangsters stemming from and the men who staffed the system. The youthful friendship and from mutual par- reformers most valued ‘‘efficiency”’ — the

ticipation in ethnic social life. The suc- idea that the criminal-justice system : cessful criminal or racketeer was almost should be uniform and impartial in the automatically at that time an important enforcement of law and the punishment

figure in urban ethnic communities. 1° of criminals. Reformers demanded

__ The many ties of the underworld and increased vigor in law enforcement and the upperworld were seldom displayed the elimination of political favoritism publicly. Occasionally a ceremonial and corruption from the criminal-justice event, such as a political banquet or a system. They sought higher standards of funeral, would bring together leaders competence for officials — from police-

from many walks of life. Indeed, the men to prison guards — and wanted

splendid funerals of gangsters at which criminal justice insulated from partisan

judges and aldermen mingled with politics.13 underworld figures shocked the decent ' There were, however, differences

citizens of Chicago. Gangsters also asso- within the ranks of reformers. One group ciated with other segments of society in — especially leading lawyers, business-

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Mark H. Haller , |

men, and newspaper editors — believed related to the political factions that conthat the major function of criminal justice trolled the city and partly because they

was to deter crime through punishment were seldom directly involved in the of criminals; and they worked to elimi- criminal-justice system. Yet reformers

nate delays in justice, leniency, and had a number of advantages that

‘‘coddling.’’ In general, they also stemmed from their social prestige, relabelieved that the police should concen- tive wealth, and organizational skills. trate chiefly upon crimes against prop- They controlled the press; their values

erty and persons: assault, rape, burglary, were almost universally acknowledged as robbery, and larceny.14 The other group normative, and they had the resources to — social settlement workers, professors, conduct investigations and work for spe-

and some clergymen — wished in part to cific reform goals. ,

use the criminal-justice system for social- An examination of three reform activireform purposes. They hoped to rehabili- ties provides an opportunity to explore tate the criminals brought within the some of the patterns by which reformers

| system and eliminate vice and tempta- influenced criminal behavior and crimitions from the urban environment. To nal justice. The first was the establishprovide a decent environment for chil- ment in Cook County of the earliest dren, they worked to close brothels, juvenile court in the United States. The

dance halls, taverns, and other traps for —_ court was the creation of reformers with a

the unwary. To protect the income of a variety of backgrounds, including social husband for his family, they struggled to settlement work, leadership in the prestidrive out gambling and to curtail or elim- gious Chicago Women’s Club, and mem-

, inate the temptation to drink. The city, in bership in the Chicago Bar Association. short, was a cesspool of iniquity; but the The founders of the juvenile court criminal-justice system might reduce the __ believed that criminal justice could serve

sinful stench.15 the goals of reform and rehabilitation, The goals of criminal-justice reformers and the reformers shaped the juvenile

— efficiency, elimination of political Cor- court to their own values and goals. 16

ruption and favoritism, higher compe- The new court, established by the state tence for political officials, creation of a legislature in 1899, was not intended to more moral urban environment — were be a criminal court. There were no “‘pros-

central to the values of the progressive ecutors” or “defendants”, and no one movement of the early twentieth century was formally found guilty of a crime. and of “good government” movements Instead, a boy under the age of seventeen generally. During the period before or a girl under the age of eighteen could World War I, the group that sought to use ~— be brought into court if there was evi-

the criminal-justice system in order to dence of delinquency or neglect. If the improve the urban neighborhood and court found the youth to be dependent or rehabilitate youthful delinquents gener- delinquent, it could then make him a ally predominated; after the war, the ward of the state and put him on probadominant group wanted to make criminal tion with his parents, place him with a justice more punitive and deterrent. In guardian, or assign him to an appropriate criminal-justice reform, then, as in so institution. The important point about many reform movements, a generally the court was the discretionary power humanitarian impulse in the period that the judge was expected to exercise in before the war took on a less humanitar- the interests of the child. ian impulse in the period following the After its establishment, the court’s dis-

war. oe , cretion was exercised under the guidance In attempting to influence criminal jus- of the reformers. For a while, the juvenile

tice, reformers were at a disadvantage, court, with a detention center, was

partly because they were only marginally located across the street from Hull House.

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Urban Crime and Criminal Justice

When the legislature, in establishing the vulgar, profane, or indecent language in court, failed to appropriate funds for pro- § any public place or about any schoolbation officers, the reformers established house’’. While the court generally dealt

the Juvenile Court Committee which, with more serious behavior by youths,

through contributions from wealthy the language of the law reflected the patrons, selected and paid the salaries of | hopes and views of some reformers. 19

the early probation officers. When public Reformers, then, replaced the adverauthorities assumed financial responsi- sary model of the criminal court with a bility for the court personnel in 1907, rehabilitative model, and the juvenile reformers continued their efforts to bar | court lacked the procedural safeguards of political influence from the selection of | the criminal courts. As a result, some probation officers and insisted that the scholars have argued that the founders of officers be persons with a demonstrated _ the juvenile court were insensitive to the

competence in social welfare. The civil liberties of the young. In fact, many

reformers also helped to select the judge § of the founders were acutely aware that who was named each year to administer the adversary system often victimized the

the juvenile court. In the early years two youths brought before the criminal

women from the Juvenile Court Commit- courts. Prior to the establishment of the tee often sat with the judge and helped juvenile court, young offenders seldom

shape decisions. 17 had defense attorneys and thus went to

Discretion in the interest of rehabilita- trial undefended. When a delinquent did tion was the formal basis for the court’s have a defense attorney, the attorney was

decisions. Many reformers believed, often more interested in his fee than in however, that such decisions could be the defense, so that the cost of the

made “‘scientifically.”. The probation defense attorney was sometimes another officers were expected to have social- way that the adversary system victimized work training and to provide background the defendant. If civic reformers acted information on each youth to guide the from an exaggerated faith in the possibijudge’s decision. In 1909, in order to fur- lities of rehabilitation, they also acted ther scientific understanding of delin- from a genuinely realistic recognition of quency, reformers took the initiative in the failures of adversary justice for the

founding a Juvenile Psychopathic Insti- young and poor.?”° 7

tute. Under Dr. William Healy, the insti- Like so many urban criminal-justice tute became a leading center for research _ institutions, the juvenile court was soon into the causes of delinquency and made __ overburdened. Probation officers handled

recommendations to the court concern- far more cases than they could reasoning specific delinquents referred to the ably investigate or supervise, This made

institute.18 it difficult to maintain the rehabilitative

| The juvenile court was intended not standards that were supposed to govern

_ only to rehabilitate delinquents but also —_‘ the court. The number of youths found to intervene to aid those youths being led delinquent often depended more upon

astray by the temptations of city life. the availability of resources for processUnder Illinois law, a juvenile might be ing them than upon the behavior of the

declared delinquent if he “is growing up = youths themselves. Between 1913 and in idleness or crime; or knowingly fre- | 1914 the number of delinquents referred quents a house of ill-repute;... or fre- to the court rose from 1,956 to 2,916, an quents any saloon or dram shop where increase of nearly 50 percent in the delinintoxicating liquors are sold; or patron- quency rate for Cook County. The reason

izes or visits any public pool room or for the increase was that twenty-three

bucket shop; or wanders about the street additional probation officers were hired in the nighttime without being on any in 1914, and the court could handle more

lawful business... or uses vile, obscene, cases.2! Given the intentions of the

310 |

Mark H. Haller

court’s founders and the realities of its violations of law than could be proseoperation, there are a number of ques- cuted. Discretion was built into daily tions that need exploration, including the police work.?3 Police in Chicago were impact of the juvenile court upon the def- —_— often primarily concerned with maintain-

inition of delinquency, upon the behav- ing order or, perhaps more accurately,

ior of young persons, and upon the’ the appearance of order. The police

opportunities for a variety of profes- sought to eliminate the open violations of sionals to study and influence youthful law that would bring complaints from

behavior in the streets of the city. local citizens or the scrutiny of reformers

Reformers proved less successful in intent upon finding scandal. Law

their efforts to influence the adult crimi- | enforcement was more vigorous in rela-

nal-justice system. Their activities tively wealthy neighborhoods than in encountered resistance that stemmed poorer neighborhoods. Such a policy

from vested interests, different values, | represented the expectations of the local and the influence of the criminal under- __ residents about the amount of violence or

world within urban politics. During the vice that was tolerable. This meant that Progressive era, for example, Chicago’s in marginal neighborhoods, where organreformers began a systematic campaign ized criminals were powerful and other to rid the city of its world-famous vice citizens exercised little effective opposidistricts. In 1907 a group of businessmen __ tion, vice could flourish without creating

representing the city’s prestigious clubs local scandal.?4 formed a Joint Club Committee to combat Furthermore, the police appear to have the white-slave trade. Religious leaders, been generally quite tolerant of vice, too, were active. In October 1909, evan- gambling, and liquor violations — to gelist Gipsy Smith led a protest parade of have adopted the view that such activitwelve-thousand law-abiding citizens ties were part of human nature and could

through the red-light district. The next not be effectively suppressed by law year, the Church Federation of Chicago enforcement. In 1912, when the city asked the mayor to appoint a vice com- council held hearings to decide whether

mission to investigate the problem. The to continue the segregated districts, vice commission, whose members police chiefs from twenty cities testified | included both leading reformers and pol- __ that segregated districts were preferable

iticians, made a careful report in 1911. It to the scattering of vice that would indescribed in detail the vice conditions in evitably result from a policy of suppres-

Chicago and recommended an end to sion. Even more significant, perhaps,

segregated districts. In that same year, a _ police officials issued orders in April number of business and civic leaders 1910 in order to head off the campaign formed the Committee of Fifteen to against the red-light districts. Although undertake a permanent campaign to operating or frequenting a house of pros- | eliminate commercialized vice. With a __ titution was illegal, Chicago police regu-

full-time executive secretary and investi- lations prescribed that “no house of gative staff, the committee was the chief __i]l-fame shall be permitted outside of cer-

reform organization to fight vice and the _ tain restricted districts, or to be estab-

white-slave trade in Chicago. 2 | lished within two blocks of any school, The reformers’ demands to end com- church, hospital, or public institution, or

mercialized vice conflicted with the upon any street car line’’. Children

vested relationships of both the police between the ages of three and eighteen — and politicians. The demands also con- _ including messenger boys, — were not to flicted with the police conception about be allowed in the district; no persons the proper methods of enforcing vice were to be held in a house of prostitution laws in the city. Chicago police, like all | by force; and open soliciting was not to American police, were faced with more __ be permitted. Furthermore, ‘short skirts,

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Urban Crime and Criminal Justice

transparent gowns or other improper ships among police, politicians, and

attire shall not be permitted in the par- criminals. In 1915, William ‘“‘Big Bill’ lors, or public rooms,’ and “obscene Thompson became mayor of Chicago. He exhibitions or pictures shall not be per- gradually removed the honest police mitted.’’?5 In short, the police response to from positions of responsibility. Investi-

demands that laws against prostitution gators for the Committee of Fifteen soon be enforced was to tighten informal regu- found the police uncooperative. Thomp-

lation rather than enforcement. son inaugurated an era of almost unprec-

During the antivice crusade, the mayor edented cooperation between politicians

and the state’s attorney, faced with and criminals — a cooperation that grew reform pressure and periodic scandals, rapidly with the coming of prohibition. took action to obtain the semblance of Nor did the reformers succeed in jailing effective police enforcement. Eventually the vice lords. A few went out of busithe mayor created a special vice squad ness. But many moved their operations to

and removed the police chief and a the suburbs or, in the 1920s, became sucpolice captain from their commands. cessful bootleggers.28 Reformers were too Many officers, as a result of civil-service peripheral to change the vested relations investigations, were dismissed from the of criminals with police and politicians. force. Although the campaign suffered A final illustration of reform activity is many setbacks, one by one the famous _ provided by the Chicago Crime Commishouses closed their doors, and vice either sion. The commission, established by the went underground in Chicago or moved Chicago Association of Commerce in to working-class suburbs. By the end of 1919 after a particularly flagrant payroll 1914 the Committee of Fifteen declared robbery, acted as a watchdog for the busiwith some satisfaction, ‘‘it is admitted by ness community. The commission’s all who are in a position to know the operating director, Henry B. Chamberlin, facts that the old vice district of the south a former newspaperman, attorney, and

side is practically closed.’’26 _ civic reformer, took steps to develop per-

Reformers could disperse the segre- sonal contacts with key officials such as

gated vice district because organized the police chief, state’s attorney, and criminal activity was vulnerable to cer- various judges in the municipal and

tain types of pressure. The continued criminal courts. He also placed observers threat of raids or liquor-license revoca- in the courts to keep notes on all felony tions discouraged customers and gener- trials in the county. The orientation of ally made the business unprofitable. The the commission was punitive, and its Committee of Fifteen was able to harass major goal was to make ‘justice’ more the vice operations because, in 1916, the certain, swift, and severe.29 state passed an injunction and abatement The Chicago Crime Commission under-

law. Under the law, private individuals took numerous campaigns to reform

could go to court and, if they proved that _—_ criminal justice. By the later 1920s it had

a building was being used for immoral decided that the major area of corruption purposes, obtain a court order closing the _—_and laxity in the criminal courts was the building completely for a year. The com- _ system of plea bargaining by which crimmittee’s investigators no longer needed _jnals received reduced sentences or were

to rely upon the police to make arrests _found guilty of a lesser offense than the under the criminal law. They could cir- _ original charge. The bargaining system cumvent the criminal process altogether was rooted in the impossible trial load and effectively strike at the profitability placed upon the criminal courts. In Cook

of organized prostitution.?7 County it was necessary not only that

While reformers successfully rear- most felony cases be dismissed before ranged the patterns of vice in the city, indictment but also that most indicted they did not substantially alter relation- cases be settled by means other than trial.

312 | | |

Mark H. Haller

In 1926 there were 13,117 felony arrests. removed from the criminal courts. The Fully 70 percent of the cases were dis- judges requested a judicial investigation missed at preliminary or grand-jury hear- of the charges. As a result, a panel of six ings. Only .94 percent of the defendants judges was established to hear evidence.

were found guilty of the original charge Neither the impugned judges nor the after trial; another 2.6 percent pleaded commission defended the system of guilty to the original charge; and 11 per- felony waivers and plea bargaining, , cent were found guilty of a lesser charge, although it was then, and remains today, generally by a plea of guilty.*° Criminal a basic feature of criminal justice. trials played only a minor part in the dis- Instead, the commission attempted to

position of criminal cases. Criminal-court place the blame upon the judges, and the

dispositions resulted from a system of judges attempted to place the blame

bargaining in which the defendant (or his upon the state’s attorney. After hearing

lawyer) attempted to secure a lesser evidence, the panel of judges brought in charge or an agreement to a moderate a report that placed responsibility for sentence in return for a plea of guilty. | felony waivers upon the state’s attorney.

Because the court and state’s attorney To no one’s surprise, the judges were lacked resources to try cases and the exonerated.3?2 defendant generally believed he received During the next few years, as Loesch

a better break by bargaining than he surveyed the courts, he periodically

might by trial, the system of plea bargain- = issued bitter charges, fatherly admoni-

ing was strongly entrenched within the tions, and grudging praise. In the long

criminal-justice system. me run, however, his campaign exercised lit-

The commission’s strategy was based _ tle influence upon the essentially discre-

upon a misperception. Although plea tionary and bargaining nature of the bargaining was rooted in institutional criminal-court process. The reformers

necessities, the commission assumed that continued to believe that the discretionthe system stemmed from the corruption ary administration of justice resulted or inefficiency of individual judges. Dur- from corruption or laziness, and the ing the first three months of 1928, there- judges never offered a reasoned justifica-

, fore, the commission’s observers in the tion for the system which departed so

criminal courts kept a record of felony greatly from the way the courts were sup-

waivers granted by each of the seven posed to operate.

judges. Three judges were found to have There were a number of factors, then, waived the felony count in 364 cases, that undermined the universalistic stan-

and the other four judges waived the dards of the legal system and that

felony count in 205 cases. The three explained the informal relations of crimi-

| judges not only granted felony waivers nals, politicians, and criminal-justice with the greatest liberality but also officials. One was the heterogeneity of

seemed to represent the alliance between the neighborhoods and life styles of the

the courts and politics that civic leaders city. Gambling was widely accepted deplored. Judge Emmanuel Eller, a among some groups and within certain Republican and a leader of what was neighborhoods; violation of liquor laws believed to be one of the most corrupt before prohibition and violation of propolitical rings in the city, allegedly held hibition laws in the 1920s had wide sup-

court on the sidewalk outside a polling port among some ethnic groups for place in order to release election officials whom drinking was part of a way of life;

arrested by the police for violations of even prostitution in certain red-light dis-

election laws.34- ; -_ tricts became part of the standard enter-

In late April 1928, Frank J. Loesch, tainment and business activity of the president of the Chicago Crime Commis- area. Where such activities were sion, demanded that the three judges be accepted, the police were under little

, 313

, Urban Crime and Criminal] Justice day-to-day pressure to enforce unpopular of civic reformers was that they lived out-

laws and, in fact, were under consider- side the intellectual and geographical able pressure to develop informal rela- communities they wished to reform, and tions that would maintain order rather they were not participants in the crimi-

than enforce the law. The criminal-jus- nal-justice system they wished to change. tice system, as part of the larger political While they often achieved satisfactory system, often operated to provide jobs, law enforcement in their own communi-

| favors, and income for politicians and ties, they were generally unable to have

officials. Futhermore, the criminal-justice their standards of enforcement accepted

system was overburdened. Policemen, throughout the city. And, while they

faced with more petty and serious crimes achieved success in the juvenile court than could be handled by arrest, had to system, they remained peripheral to the develop informal standards to guide their adult system and to the political factions behavior. The court system, presented that controlled it. Despite their wealth with more cases than could be tried, had and prestige, they were outsiders to the to dispose of cases by rapid processing, subculture of politics, crime, and crimidismissals, and bargaining. An informal nal justice.

system largely replaced the formal sys- The strength of the criminal undertem. The combination of political and world lay in the fact that its members personal favoritism with informal discre- were not outsiders. They could fretion meant that criminal justice departed quently maintain mutually satisfactory, if

widely from the impartial, due-process sometimes ambiguous, relations with model that was written into law and sup- enforcement officials. They were tied to

ported by civic reformers. politics by a shared belief that the system The weakness of civic reformers should operate on the basis of friendship

stemmed partly from the fact that their and favors. They played a part in organ-

moral values were not shared by a ized labor and in many aspects of busi-

number of their fellow citizens and their ness activity. Within the red-light district

legal values were not shared by politi- and in other parts of the city, they particians and officials. But this should not be cipated in a social life of saloons, hangoveremphasized. There was in Chicago a outs, and gambling parlors. They had a

widespread concern with the impact of secure place within the social structure commercialized vice, saloons, crime, and of Chicago and other American cities at official corruption. The major weakness the turn of the century.

BLANK PAGE

Part Ten |

Race Relations and the Law

What character the federal Union previously with such precision, Cohen’s

would assume was the central political technique is the classic methodology and and constitutional question of the Repub- his sources are the type of evidence that lic’s first half-century, but by the 1850s legal historians have traditionally used to the problem of slavery was casting that define the boundaries and content of the question in new form. From that time on legal system. the problem of racial equality under the If the fate of thousands of dispossessed law was to be a dominant theme in the people in the courts, prisons, cities, and legal and constitutional evolution of the farms of the South is the stuff of black hisnation; for while the Civil War finally tory, nonetheless the major thrust for legal established the supremacy of the central change came from the distant and rarefied government, it did not come close to end- forum of the federal Supreme Court. Wiling racial disharmony. What remained to liam B. Hixson studies how one promi-

be determined was whether or not the nent lawyer played a central role in the nation would extend true equality before dramas staged there in the nation’s the law to its non-white citizens. Over “struggle for equality.”” Through biogratime the courts, the legislatures, and the phy, Hixson probes the motivations, style,

people had to face increasingly bitter and and accomplishments of Moorfield

strident demands for extension of equal Storey, a man who exemplified how a cre-

rights to minorities. ative lawyer can seek social change Using three distirict modes of analysis, through law. A subsidiary, but important,

the essays that follow explore important theme in this essay is the work of the features of the legal history of race rela- NAACP in the courts — a significant tions. The historian William Cohen, in his example of organized legal action fin-

article on involuntary servitude of blacks anced and promoted by a voluntary asso-

in the South after 1865, examines south- ciation contending for the rights of a ern state-court decisions and statutes to disadvantaged group. reveal the manifold forms that ‘“‘servi- The climax of the long struggle in the tude”’ took in the efforts by white society courts, exemplified by Storey’s career, to keep blacks bound to forced labor. came in the case of Brown v. Board of Although the subject has not been studied Education in 1954. This great case was, of 315

316 ,

Race Relations and the Law

course, a beginning as well as a culmina- Includes fullest available bibliography on tion of an historic legal confrontation. The the Supreme Court and civil rights.

Warren Court followed it with decisions Daniel, Pete. The Shadow of Slavery: that reshaped constitutional law in race Peonage in the South, 1901-1969. New relations, giving new meaning to the York: Oxford University Press, 1972. phrase ‘equal protection of the laws” in Harris, Robert J. The Quest for Equality. the Fourteenth Amendment. These deci- _ Baton Rouge: Louisiana State University sions also paved the way for the modern _s press, 1960. . phase of the civil rights movement — and Kurland, Philip B. Politics, the Constituthe “Black Power” movement as well. The _ tion, and the Warren Court. Chicago: Uni-

political scientist S. Sidney Ulmer, in a versity of Chicago Press, 1973. case study of Earl Warren and the Brown Lyons, Thomas, with Harry N. Scheiber. decision, provides an illustration of how The Supreme Court and Individual Rights in contemporary social science has contri- Contemporary Society. Menlo Park; Calif.: buted to the analysis of judicial behavior Addison Wesley, 1975.

and judicial politics. Murphy, Paul L. The Constitution in Crisis

Times, 1918-1969. New York: Harper & Further- ,Reading Row, 1972.

, Abraham, Meier, August, and Elliott Rudwick. Henry J. Freedom and the CORE: A Study in the Civil Rights MoveCourt: Civil Rights and Liberties in the ment, 1942-1968. New York: Oxford UniverUnited States. 2d ed. New York: Oxford Uni- sity Press, 1973.

versity Press,1972. Oo Peltason, J. W. Fifty-Eight Lonely Men: ———. The Judicial Process. 3d ed. New Southern Federal Judges and School DeseYork: Oxford University Press, 1976. gregation. New York: Harcourt, Brace, 1961.

William Cohen | Negro Involuntary Servitude in the South, 1865-1940: A Preliminary Analysis

The Thirteenth Amendment formally years immediately after Reconstruction, ended slavery, but the legacy of bondage the system of involuntary servitude

proved stubbornly persistent. Seventy- remained largely hidden until 1907, when five years after emancipation black forced the Department of Justice published labor remained common in many areas of Assistant Attorney ‘General Charles W. the South. While historians of the South Russell’s “Report... Relative to Peonage have devoted much attention to the Matters.” The title is misleading. The cenoppressive effects of sharecropping, ten- tral argument of this work was that peonantry, the crop-lien system, and peonage, age constituted only one dimension of a few have addressed themselves to the more comprehensive system of involun-

larger system of involuntary servitude tary servitude having its roots in laws within which these factors operated. “considered to have been passed to force From a legal standpoint this system com- negro laborers to work.’ Peonage had a ,

prised a variety of state laws aimed at _ precise and narrow meaning. For this con-

making it possible for both individuals dition to exist an individual had to be and local governments to acquire and held to labor against his will in order to hold black labor virtually at will. Beyond satisfy a debt. According to Russell many this, involuntary servitude was a creature southern statutes were being used to com-

of custom dependent upon community pel laborers to work against their will attitudes which sanctioned the use of even without a claim of debt. In such

forced labor. Occasionally such attitudes cases the federal government was vireven allowed whites to compel labor from tually powerless, for the Peonage Act of Negroes without the pretense of a legal 1867 seemed to be the only tool that could

justification.* - be used to stop forced labor, and this law Contained in embryo in the Black Codes applied only in situations where a debt and gaining increasing strength in the was alleged. Seeking to change this situa-

Reprinted in slightly abridged form, from The Jour- tion, Russell suggested: “It might even be

317 | ,

nal of Southern History, vol. 42, No. 1 (February well to abandon the use of the word 1976), 31-60. Copyright, 1976, by the Southern His- ‘peonage’ and pass a law forbidding , torical Association, by permission of the Managing involuntary servitude.” His plea went

Editor and the author. , unheeded.?

William Cohen 318

Whether focusing upon peonage or blacks in times of labor scarcity and also involuntary servitude, earlier studies gave employers a coercive tool that might assert or imply that latter-day bondage be used to keep workers on the job. Those

was widespread; however, large-scale __ jailed on charges of vagrancy or any other Negro migration from one southern state petty crime were then vulnerable to the to another and later from the South to the operations of the criminal-surety system, North indicates that the southern labor which gave the offender an ‘‘opportunity”’ system did not immobilize the Negro to sign a voluntary labor contract with his labor force. This essay will seek to former employer or some other white who describe the system of involuntary servi- agreed to post bond. Convict-labor laws tude within a conceptual framework that began where the surety system ended, and accounts for this paradox. At the same those who had no surety often wound up time it will attempt to describe the nine- on chain gangs, which in effect were a

teenth-century origins of the system.? state-sponsored part of the system of Far less rigid than slavery, the system of involuntary servitude.*

involuntary servitude that emerged after These statutes need not have created the Civil War was a fluid, flexible affair the system of involuntary servitude. which alternated between free and forced Vagrancy and convict-leasing acts existed

labor in time to the rhythm of the south- in the North, and, taken at face value, ern labor market. Employers had the legal many contract-enforcement laws simply

and social tools to compel labor from aimed at penalizing fraud. What gave life blacks, but the use of such measures was to the system was the intent of the men not obligatory. When labor was plentiful, who wrote its laws and the spirit in which Draconian powers were unneeded. When these measures were enforced. Most of the

it was scarce, they were readily at hand. laws discussed here made no mention of Thus whites had no reason to impede race, but Southerners knew that the laws black mobility except when faced with a were intended to maintain white control real or anticipated shortage of hands, and of the labor system, and local enforcement the system had something of a ‘“‘now you authorities implemented them with this

see it, now you don’t” quality about it. in mind. Custom transcended statute;

Still, compulsion was frequent enough. and, with the full assent of the white comEven when unused, force posed an omni- munity, these acts served as a skeleton

present threat which had a pervasive which was fleshed out with a host of effect upon the tone of the southern labor __ extralegal and illegal practices designed

system. to keep blacks hewing wood and drawing The laws of involuntary servitude faci- water. litated both the recruitment and the reten- Writing in September 1865, Henry Wil-

tion of black labor. Enticement statutes liam Ravenel voiced sentiments that established the proprietary claims of | would remain a common southern theme employers to “‘their’’ Negroes by making for generations when he said: ‘There it a crime to hire away a laborer under must... be stringent laws to control the contract to another man. Emigrant-agent negroes, & require them to fulfill their

laws assessed prohibitive license fees contracts of labour on the farms.’’5

against those who made their living by Responding to such pleas, from 1865 to

moving labor from one state to another, 1867 one southern legislature after

and a variety of contract-enforcement stat- | another enacted Black Codes designed to utes virtually legalized peonage. In some __ preserve white hegemony. The story of cases contract legislation went still fur- these codes is well known, and this essay

ther and made it a criminal offense to — will consider only those portions which break a labor contract even when no debt — laid the groundwork for the system of

was involved. Broadly drawn vagrancy involuntary servitude. The code provistatutes enabled police to round up idle sions dealing with contract enforcement

319

Negro Involuntary Servitude in the South, 1865-1940

and vagrancy have often been described, most common measures aimed at control-

but less attention has been paid to related ling the Negro labor force adopted in

statutes. Also enacted at this time were these years. Only Tennessee failed to pass laws dealing with enticement and mea- such an act then, and it did so in 1875. Of sures foreshadowing later legislation per- the remaining states, Virginia alone failed taining to emigrant agents, convict labor, to make enticement a criminal offense.

and the criminal-surety system.® Georgia made it a crime to entice a worker

Reconstruction voided most Black Code ‘by offering higher wages or in any other legislation, including many statutes deal- way whatever.” Some states made it ille-

ing with enticement, contract enforce- gal to hire a contract breaker, and a few ment, and vagrancy. the Redeemer penaiized whoLouisiana’s harvored: cetained ouk power, however,Onee the former Confed- or fed suchthose a person. law punerate states began to resurrect the labor ished ‘any éne who shall persuade Or controls established from 1865 to 1867. In entice away, feed, harbor or secrete any the years after Reconstruction there was a person who leaves his or her employer.” —

spate of new laws aimed at keeping blacks Frequently amended, the enticement on the farm. Significantly, when court statutes remained active law until World

action invalidated some of these mea- War II. Most of the changes occurred

sures, the states often replaced them with before 1910, but some came later. South others of similar ilk. A survey of the laws Carolina and Mississippi brought the of involuntary servitude and of the ways enticement of minors within the purview

in which they were applied will reveal of their laws in 1913 and 1924, respecboth the nature of the system of involun- tively. Alabama made attempted enticetary servitude and its persistence into the ment a crime in 1920. Three years later

twentieth century. Arkansas increased the maximum penalties for those convicted under her law,

Enticement Laws and in 1928 Mississippi weakened her More than any other form of legislation, statute by making it applicable only to the enticement acts embodied the essence willful violators. As was often the case, of the system of involuntary servitude. this change was the result of a restrictive They re-created in modified form the pro- court decision. North Carolina had four

prietary relationship that had existed enticement laws. One of these was

between master and slave. With prece- enacted in 1905 and applied only to tendents going back to fourteenth-century ants and croppers living in certain speciEngland, these laws had an extensive his- fied counties. Between 1920 and 1951 ten tory in both criminal and civil law. Seven- separate acts added fourteen more counteenth-century Americans often viewed ties to the fourteen originally listed in this

the enticement of a servant as a crime act. tool

against society (that is, a violation of crim- Mississippi made extensive use of her inal law), but later generations took the enticement law, and in 1917 when the matter less seriously and treated it as a constitutionality of that act came before civil wrong involving only private rights. the state supreme court, Assistant AttorBy the mid-nineteenth century criminal 2¢y General Frank Roberson noted that prosecutions for enticing a servant had the statute had been before the high court become virtually nonexistent, and civil on at least twenty previous occasions. He cases were rare. Thus, it is highly signifi- went on to argue that such a law was an cant that when the South resurrected the | @bsolute necessity “in an agricultural

enticement laws after the Civil War state where long time contracts are made

almost every former Confederate state and monies necessarily advanced in antichose to make them criminal statutes. cipation of the fulfillment of a contract. Ten southern states enacted enticement Then he added: This is without reference laws from 1865 to 1867. They were the to the fact that incidentally the larger part

320

William Cohen

of the labor may be negroes.’’ Whether Carolina Supreme Court declared the law Roberson meant to say that race was irrel- unconstitutional except where the indictevant to the issue, or subtly to imply the ment alleged that the tenant had entered

opposite, is not known. Whatever his into his contract with the intention of

intent, enticement cases in Mississippi defrauding his landlord. Taken on its face and elsewhere almost always involved sit- the statute was completely unconstituuations ‘in which a white planter was tional, for, until it was amended in 1945,

_ seeking to entice a black laborer. | it contained no reference to fraud. Even in North Carolina, where whites By bringing in the unmentioned matter

generally outnumbered Negroes by a ratio of fraud, the court left just enough room of two to one, blacks figured in the great for the statute to remain on the books, and majority of enticement cases. When two this gave local magistrates an opportunity black ‘‘orphans”’ ran away from a Samp- to use it without regard to its constitutionson County planter in 1872 he published a ality. Responding to an inquiry from the

notice saying: ‘I hereby forbid anyone editor of the Chapel Hill Weekly, a Yanemploying them... or giving aid or com- ceyville man familiar with the courts and fort in any way to them upon penalties of county offices in the area asserted that law.” In 1911 John Bridges, a Negro who notices like those placed by Dabbs were

lived in the vicinity of Wake Forest, still being used to ‘‘put the fear of God entered into a contract with A. M. Harris, into Negroes and ignorant white folks.”

a white man. Bridges later quit as a result He termed the law permitting this of a dispute over wages, and Harris pro- “archaic,” but said that ‘“many of our

ceeded to harass him from job to job by magistrates still hold it is good law and threatening to bring each new employer zealously support its use in upholding the into court under charges of enticement. contentions of landlords who resent any Finally, one employer, Jonathan C. Fort, dissatisfaction on the part of tenants to refused to fire Bridges, and Harris brought whom they have advanced as much as 50

suit against Fort. At the same time he cents for rations on which to make a

arranged to have Bridges thrown in jail on crop... As long as folks don’t know the unknown charges. Such practices still statute is unconstitutional it can be made obtained on the eve of World War I, and to serve its intended purpose. The Cas-

in 1939 the Caswell Messenger of Yancey- well legislator who would try to take that |

ville, North Carolina, carried the follow- law off the books would lose many ing advertisement: ‘“NOTICE — I forbid _ votes.’’?° ,

any one to hire or harbor Herman Miles, ,

colored, during the year 1939. A. P. Emigrant-Agent Laws > Dabbs, Route I, Yanceyville.’’?

The laws of enticement can be distin- White planters concerned about mainguished from contract-enforcement legis- taining a stable work force saw enticelation by their emphasis upon regulating ment as a threat to their labor system, and the behavior of employers rather than they took the same view of the “emigrant laborers. Nevertheless, the line between _—_agents’’ who made a living as interstate these types of law was often hazy, and the labor brokers. Here, too, their main con-

two could sometimes be combined in a cern was to regulate the behavior of single act. The law invoked by Dabbs whites. In ante-bellum days slave traders

against Miles was probably a 1905 statute — played a necessary role in the southern making it a crime for tenants and croppers economy by arranging for the reallocation

in certain specified counties to abandon of labor from areas where it was supertheir crops without first repaying any abundant to places where it was scarce. advances made by their landlords. Afur- After emancipation emigrant agents

ther clause penalized anyone who know- served the same function. In so doing they

ingly employed a laborer who had fell heir to the social stigma that attached violated this provision. In 1909 the North to their predecessors.

321

Negro Involuntary Servitude in the South, 1865-1940

A useful though despised breed, the — sional agent found it possible to pay the emigrant agents represented a menace to occupation tax and make a profit. For the those who feared the loss of their workers. most part, however, law and public opinThus, emigrant-agent laws came first in ion combined to drive them underground. those states which felt themselves most Even before Mississippi legislated against threatened by Negro out-migration. Hard the agents, her citizens made their disdain hit by black movement to the West, Geor- for recruiters abundantly clear. In 1908 gia took the lead in 1876, when she levied the steamer America landed at a Natchez -an annual tax of one hundred dollars for wharf and waited while agents sought to each county in which a recruiter sought add more laborers to the number already labor. A year later she raised the amount on board. Mobilizing to fight this threat,

to five hundred dollars. All the southern local businessmen ‘‘organized the states which acted to outlaw emigrant ‘Bankers’ and Merchants’ Labor’ Agency

agents followed this pattern and for the purpose of keeping the negroes at attempted to levy prohibitively high home.” Meeting with a large group of license or occupation taxes. Roughly sim- blacks assembled at the pier, a committee ilar measures were soon adopted in Ala- of white citizens used methods which a

— bama (1879), North Carolina (1891), South southern reporter described as ‘‘so Carolina (1891), Florida (1903), and Mis- emphatic that the negroes concluded to

sissippi (1912). abandon their idea of leaving.’’ That same The massive wave of black migration day fifteen local labor agents (two of

that began in 1916 and continued sporad- whom were Negroes)were told to leave ically through the 1920s provoked more town."

legislation. Tennessee (1917), Virginia Official efforts to curb the recruiters (1924), and Texas (1929) joined the list of often complemented informal actions like

states having emigrant-agent laws, and this. Sometimes the target might be a proFlorida, Georgia, and Alabama drastically fessional like R. A. “Pegleg”’ Williams of

increased the severity of their statutes. Atlanta, but more often than not the

License fees and penalties rose sharply. In whites who ran afoul of the emigrantaddition, Georgia broadened the defini- agent laws were private employers like C. tion of an agent to include virtually any- W. Lane, a West Virginia construction one who sought to take labor out of the company official. Operating openly, Wil_ state. Agents were required to make daily liams paid the Georgia license fee and

reports and to post bond to cover any transported thousands of blacks to the

debts which might be owed by those Southwest in the 1890s. Still, local

being transported to out-of-state jobs. authorities harassed him, and he invited These provisions were mild compared prosecution by refusing to pay the license

with those of Alabama, which defined the tax. Georgia officials gladly obliged, and term “emigrant agent’ so broadly that it he then fought the case all the way to the included assistants, messengers, and even United States Supreme Court. In 1900 this

the printer who ran off recruiting hand- body upheld the right of the states to bills. Each such person had to pay a five- license emigrant agents as they saw fit

thousand-dollars-per-county annual and denied Williams’s argument that

license fee, and each had to supply a rec- such licensing interfered with interstate ommendation signed by twenty ‘“‘house- commerce. Unlike Williams, Lane sought _ holders and freeholders’’ testifying to his workers for his own use and not for a third good moral character and to the fact that party, but this did not stop the sheriff of he had been a state resident for at least six Rowan County, North Carolina, from

months. | arresting him in 1905 for attempting to . - The Great Depression rendered laws hire men to build a railroad in West Virlike this unnecessary, but prior to this ginia. Lane won his release by paying the time they were a powerful deterrent to the license tax and subsequently sued for the open solicitation of black labor. An occa- return of his money. The North Carolina

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William Cohen

Supreme Court sustained his contention Florida’s contract law made ‘‘willful disthat he was not an agent within the mean- obedience of orders,” ‘‘wanton impuing of the law. Typical of many, this case dence,” or the failure to perform assigned illustrates the frequent failure of local work crimes punishable in the same manpolice to distinguish between the profes- ner as vagrancy. At the discretion of the

sionals and others who might also be employer this penalty might be waived recruiting black workers.!? Even in states and the laborer remanded back to his that regulated only the professionals, cus- custody. tom rendered suspect any solicitation of This law continued into the 1890s, but

Negro laborers. the other statutes mentioned above disap-

Inhibited by such laws and customs, peared during Reconstruction. Then, in whites needing labor often turned to the 1880s, they began to reemerge in more Negro agents, subagents, and informal subdued forms. The most common succesrecruiters. These blacks knew where to sor was the “false pretenses” act, which find workers and could enter and leave made itacrime to take advances and then

Negro areas less conspicuously than break a contract if one had entered the

whites. With some frequency, agreement with the intention of subse-

law-enforcement authorities arrested quently violating it. Enacted in Alabama

Negroes for recruiting without a license. (1885), North Carolina (1889, 1891), and Whether this reflected the degree to Florida (1891), these early statutes spread which whites actually used Negro surro- _a veneer of legitimacy over legal proceedgates as recruiters, or whether it mirrored ings that were nothing less than criminal differential treatment at the hands of prosecutions for breach of contract. Refus-

sheriffs and police is not known.% ing to go along with the ruse, the Alabama Implicit in the sanctions against emi- | Supreme Court insisted that valid convic-

, grant agents as well as in the enticement tions could only be had when it was

acts was a widely held proprietary atti- proved that an intent to defraud existed | tude toward blacks which had its roots in’ when the contract was made. the property relations of slavery. If whites In 1903 Alabama plugged this loophole sometimes thought of themselves as the _ by adding a proviso making the unjustified

guardians of child-like Negroes, they refusal or failure to do the work called for more often responded to the presence of in the contract or to refund any advances “enticers” or labor agents as though they _ that had been made “‘prima facie evidence

thought their goods were about to be of the intent to injure or defraud Nis

stolen. employer.’ North Carolina (1905) and Florida (1907) soon followed suit. In the

Contract-Enforcement Laws wake of Alabama’s early lead, four states

Unlike the emigrant-agent and entice- which had no false-pretenses acts at all ment acts, which focused on white behav- saw fit to adopt such laws, and each ior, contract-enforcement statutes aimed included a prima facie clause in its new directly at regulating blacks. As in other legislation. These states were Georgia areas, the Black Codes set the tone for later (1903), Mississippi (1906), Arkansas legislation. In 1865 Mississippi required (1907), and South Carolina (1908). If there Negroes to enter into labor contracts bya —_ had been any doubt as to the intent of the specified day each January. South Caro- first false-pretenses acts, the new measures

lina, Louisiana, Texas, and Arkansas made it clear that what concerned the

required employers to grant discharge cer- legislatures was not fraud but breach of tificates to laborers who had legitimately —_ contract. Law-enforcement officers acted left their service. A subsequent employer _ accordingly, and only rarely did the evi-

who hired a worker without a certificate dence suggest that those accused under

would render himself liable to prosecution these laws had intended to commit fraud.

for enticement. Most Draconian of all, In Bailey v. Alabama (1911) the United

323

Negro Involuntary Servitude in the South, 1865-1940

States Supreme Court overturned the Ala- Table 26.1 Reported Cases from the Higher bama statute on the ground that it contra- Courts of Georgia Involving Litigation Under vened the Federal Peonage Act of 1867 and The State Vagrancy and Labor-Contract

the Thirteenth Amendment. The Court Statutes reasoned that, despite the law’s apparent I aim of penalizing fraud, the presumption Supreme Court Appellate Court , of guilt contained the prima facie clause ————2ases___ Gases wae .inPeriod Contract Vagrancy Contract ____ Vagrancy

created a condition alone C Cases Cases .have ope ofjustified . peonage. ; asesThis Cases would the rejection of the ss law, but, in addition, the Court expressed 1903-1911 23 10 39 7

concern that Alabama did not permit the 1912-19211 a 41 4

defendent to give rebuttal testimony about 1922-1931 — — 17 7

his uncommunicated motives or inten- ‘971974 = * 7 4 : tions. As a result of the Bailey decision there was far less dispute about the legal

Arkansas and Mississippi belatedly issues involved in vagrancy cases than in

removed the false-pretenses laws from cases arising under the contract law. Dur-

their legal codes.14 ing the 1930s Georgia’s higher courts

Elsewhere the states sought to preserve heard fewer cases in both categories, and such statutes. In 1911 Alabama passed a this partially reflects the impact of the new measure which did not contain a Great Depression. prima facie clause. South Carolina fol- Paralleling the false-pretenses acts, still lowed suit a year later. North Carolina’s other statutes virtually made the breach of

high court held the clause invalid but a labor contract per se a criminal offense , sanctioned the rest of the law. With appro- rather than a civil offense. In the early priate caveats the unconstitutional clause twentieth century Alabama, Mississippi, repeatedly appeared in the state code until and Louisiana had active measures to this 1943. Ignoring the essence of the Bailey effect, but they were soon nullified by decision, Georgia’s supreme court held action of the state supreme courts. Perhaps that this case did not apply to its law since because their legislators knew that custom

the state had no rule forbidding rebuttal and other statutes rendered such acts

testimony against prima facie evidence. In superfluous these states took no action to

1913 Florida enacted a new statute replace their fallen laws.17

designed to meet some of the objections of In 1869, with Radical Reconstruction at

the federal court, but in 1919, after this full tide, South Carolina adopted a conmeasure proved defective, she adopted yet tract law holding that a worker who failed

another act complete with prima facie to give the labor reasonably required of clause. Both the Georgia and Florida laws him or refused to abide by the conditions

continued in use until the high court of his contract would ‘“‘be liable to fine or

struck them down during World War II.15 imprisonment, according to the gravity of As Table 26.1 shows, Georgia’s law was the offense.’”’ Quite unspecific regarding the subject of a good deal of higher-court the punishment of laborers, this same act

litigation prior to 1932.1 The mere fact provided that landowners who defrauded

that so many contract cases came to these their workers might be fined from fifty dolcourts for adjudication suggests theirwide _ lars to five hundred dollars. In 1889 these

use at the local level. Appeals were expen- differential punishments provided the

sive and required support, and many cases grounds for a court challenge. Even before must never have moved beyond the county the state supreme court rendered its decicourts. Contract cases came before Geor- sion the legislature hastened to correct the

gia’s high courts more often than did — defect by providing equal penalties for vagrancy cases, and this too suggests the both landlords and laborers. Eight years

- popularity of the false-pretenses act. It later a supplementary act promised should be remembered, however, that imprisonment for from twenty to thirty

324,

William Cohen days or a fine of from twenty-five to a essentials is as degrading as that of slavhundred dollars for ‘‘any laborer working ery.’’20

on shares of crop or for wages... who shall Such sentiments notwithstanding,

receive advances ... and thereafter will- South Carolina was in no mood to abandon fully and without just cause fail to perform her system of involuntary servitude, and the reasonable service required of him.” the complex and tortuous path of her conTwo 1904 amendments stiffened the pen- _ tract legislation was the direct result of her

alties and provided that a conviction attempt to maintain this system against

would not release the laborer from the duty court assaults. Four laws adopted between

of discharging his previous contractual 1907 and 1918 testify to the state’s deterobligation after he had been released from mination. Together with a 1912 act and

prison. 18 , , portions of the 1869 law this legislation In 1907 two courts declared this remained on the books until at least 1962.

amended law (Section 357, South Caro- , tional on the ground that it placed laborers ,

lina, Criminal Code, 1902) unconstitu- Vagrancy Laws

in a condition of peonage. In overturning The contract system could work only if the measure, both the state supreme court there was some way of forcing blacks to and the federal district. court said expli- sign labor agreements in the first place. citly that it had been created to control § Vagrancy statutes provided just such a Negro labor. Federal judge William Hug- means, and all the former Confederate gins Brawley summarized one of the argu- states except Tennessee and Arkansas ments favoring the retention of the statute, passed new vagrancy laws in 1865 or 1866.

saying that ‘‘the legislation complained of Defining vagrancy in sweeping terms, is a part of a system of local administration these nine states gave local authorities a in matters of great concern to the industrial virtual mandate to arrest any poor man life of the state; ... under our system of who did not have a labor contract. Signifi-

local self-government the power of the cantly, all the new vagrancy laws except state in that sphere issupreme;and...the that of North Carolina provided for the hirwhite people of the state, now charged ing out of convicted offenders. Florida, with the responsibility of its government, Louisiana, Georgia, and South Carolina set being better acquainted with the negro, his maximum terms of up to one year. Ala-

capacities and limitations, can determine bama and Mississippi established penalbetter than those outside of it what policy ties that combined fines and jail in such a will best subserve his interest and their manner as to mean at least a year’s labor for

~own.”’19 — OR | anyone who could not pay his fine. Vir-

Himself a Confederate veteran and a ginia and Texas provided milder punish-

proud scion of the slaveholding class, © ments, and North Carolina set no limit to

Brawley nonetheless contended, ‘‘Theone __ either the term in the workhouse or the size

sufficient answer to the argument is that ofthefine. |

the question of human liberty is not one of - Between 1890 and 1910 there was a rash

merely local concern. It rests upon the of racially motivated legislation, includConstitution of the United States.” More- ing the infamous Jim Crow laws as well as over, the courts had no higher duty than to a host of acts relating to the southern labor construe liberally the provisions for per- | system. Taken as a whole, these measures sonal security and liberty which were the indicated southern determination to make foundations of free government. In a dif- the existing system of caste and involunferent vein, he also observed that South _ tary servitude even more rigid than it had Carolina’s efforts to promote foreignimmi- already become. As part of this pattern all gration would be to no avail “‘so long as our the former Confederate states except Ten-

statute books hold legislation tending to nessee adopted new vagrancy laws ~

create a system of forced labor, whichinits | between 1893 and 1909. These laws

325

Negro Involuntary Servitude in the South, 1865-1940

defined the crime of vagrancy in painstak- category of legislation, the use of these

ing detail, and yet, paradoxically, they laws reflected the continuing belief of

were even broader and vaguer than before. whites that they had the right to approAlabama’s 1866 statute began by stating priate Negro labor whenever ‘‘the good of that ‘‘any person who, having no visible society’’ demanded it. In addition, the means of support, or being dependent on times at which the vagrancy statutes were his labor, lives without employment, or invoked show clearly the way the freehabitually neglects his employment...” labor market came and went according to The 1903 replacement read that ‘‘any per- the supply of black labor and how Negro son wandering or strolling about in idle- migration could exist side by side with a

ness, who is able to work, and has no system that could and did limit Negro

property to support him; or any person mobility. ,

leading an idle, immoral, profligate life, At harvest time cotton farms experihaving no property to support him...” enced an acute need for a large work force,

This wording was identical with that of — and it was precisely at such times that the Georgia’s 1866 law and was also adopted police became most active in discovering by Mississippi (1904) and North Carolina vagrants. So common was the practice that

(1905). Georgia let her definition of the Atlanta Constitution could quip to the vagrancy stand, but she did increase the police: “Cotton is ripening, See that the range of penalties. From now on vagrancy ‘vags’ get busy.” Local officials at all levels

would be punished ‘‘as for a misde- endorsed such tactics, and in 1910 a Memmeanor,”’ and this meant that judges might phis police-court judge announced a new impose one or more of the following max- policy whereby blacks brought before him imum penalties: a thousand-dollar fine, on vagrancy charges would be allowed ‘‘to

~six months on the state chain gang, or go free provided they would accept jobs | , twelve months on the county chain gang. offered by farmers who have set up a cry

No other state went so far, but, on the over scarcity of ‘hands.’’’ Warmly

whole, the new laws were harsher than endorsed by the mayor and police commis-

those that preceded them. With little sioner, this plan was accompanied by the change these acts remained in effect into announcement that the police would

the 1960s. — , “renew their efforts to clear the city of all

- Actual enforcement of the vagrancy vagrants and loiterers.’’2! laws varied. Immediately after the Civil For cities, too, vagrancy statutes served War southerners were convinced that the as a means of recruiting black labor to Negro would not work without coercion, serve the needs of white society. In 1910, and they also knew that the northern con- as this country’s romance with the car was

querers were not averse to using vagrancy beginning, the Automobile Club of

measures when they saw fit. At the same America selected Savannah as the site of time they became increasingly aware of a its International Grand Prize Race. When sharp northern reaction against the Black news of the decision reached the city, overCodes. As a result of these crosscurrents joyed local officials announced that in -

some areas experienced a vigorous anticipation of this action they had already enforcement of the vagrancy statutes, taken two hundred convicts off their nor-

while others did not. Whether enforced or mal jobs to put them to work on the race-

not, these laws served as a threat to those course. The superintendent of county

who might hestitate to enter into labor con- public works said this would mean that all tracts, and this was their central purpose. other public works requiring convict labor However limited their enforcement may would have to be neglected. The next day have been before 1880, by the early twen- ‘Negro loafers and vagrants were rounded

tieth century the vagrancy acts had up by the scores in all parts of Savannah.”’ become a mainstay of the system of invol- This dragnet brought in more than a

untary servitude. More than for any other hundred blacks, and it was announced that

326

William Cohen ) those who could not “prove their inno- vagrancy arrests could lead to peonage,

cence” would be sent to work on the but the cases given above have been

racecourse.” | selected to show that white southerners

Down through the years Southerners also made wide use of the vagrancy laws in continued to use vagrancy laws to compel situations where the element of debt was community service from blacks. In 1937, nonexistent or, at most, incidental. when depression-ridden Miami, Florida,

could not find the funds to maintain its Criminal-Surety Laws

trash collection schedule, it- began to use

Negro prisoners as garbage men. The Still, peonage remained a major element Miami Daily News sarcastically reported within the system of involuntary servi-

the ensuing events: ‘Unfortunately there tude. Contract-enforcement laws served as weren’t enough prisoners of the proper one means by which blacks might be held persuasion [ that is, Negroes] available, but in peonage; the criminal-surety system that didn’t stop the astute officials. They provided another route toward the same

simply sent an SOS to police, who end. Under this system employers paid the

promptly went out and rounded up a hat- fines and costs of individuals convicted of ful of negro vagrants. As soon as the cur- minor offenses like vagrancy, petty larrent crop of prisoners concludes its time, ceny, or public drunkenness. Such peranother batch will be forthcoming, prom- sons were, in turn, contractually obligated

ise the police.”’ Investigating this report to repay the money advanced on their

Justice Department lawyers learned that behalf. In a variant of this system, a planter fifty-five blacks had been rounded up and sometimes bailed out a worker before a

that seventeen had been convicted of trial. The authorities then dropped the

vagrancy. Although there was no evidence matter, leaving the black beholden to his of similar white arrests, federal officials new employer for the money advanced on

concluded that the vagrancy law was his behalf and fearful that misbehavior

being impartially enforced. would bring a return to jail.?4

World War II accelerated the socioecon- With roots that probably went back to omic changes that were gradually eroding the antebellum mistreatment of poor the system of involuntary servitude, but = whites and free Negroes, the criminal-

remnants of the old ways persisted. In Sep- surety system apparently came into wide tember 1943, acting in conformity with use shortly after the Civil War. It remained Alabama’s ‘‘Work or Fight”’ program, the in use well into the twentieth century, but sheriff of Mobile County charged fifty-five only Georgia and Alabama gave it the sancNegroes with vagrancy. Included in this tion of state law. Elsewhere in the South, number were two men picked up at the however, it at least had the endorsement of

specific request of their employer, the custom, and further research may show Ruberoid Company, because they had that it was written into law at the local

been absent from work for at least one day a level. In 1874 Georgia made it lawful for

week over the past one hundred weeks. misdemeanor convicts working off their All these instances were linked by the fines to hire themselves ‘‘to any citizen of

theme of service to the white community. this state who pays the amount of said senWhether the setting was Savannah, Geor- tence, for said prescribed term.” Twenty gia or Miami, Florida, Negroes provided a years later the state supreme court held ready pool of involuntary labor that could that this provision had been repealed by an _ be tapped whenever whites faced any sort 1878 convict law. As will be seen, the pracof labor emergency. Southern use of the tice continued at the local level. Adopted

vagrancy statutes had often been treated in 1883, Alabama’s complex surety law simply as a dimension of peonage, but to penalized those who signed a labor constop there is to miss the larger picture. Cer- tract to get out of jail and then failed to pertainly debt servitude existed, and certainly form the work called for in the agreement.

327

Negro Involuntary Servitude in the South, 1865-1940

This measure stipulated that the surety arranged the murder of ten of his peons contract had to be signed in open court, but and personally killed an eleventh Negro.

-a 1907 enactment provided that such Subsequent investigation revealed that agreements would also be valid if signed these workers had been acquired from the in the presence of a mayor or city recorder. jails of Atlanta, Macon, and other nearby

The 1907 law symbolized Alabama’s towns. Testifying in his own behalf, Wildetermination to maintain the system of liams said: ‘I am like most farmers that I involuntary servitude at all costs, for it know, that at times I have bonded out and came in the wake of a series of major fed- paid fines for niggers with actual agreeeral peonage prosecutions, and it aimed to ment that they would stay there till their facilitate further the process by which fines were paid, or till he was relieved from blacks might be bound to labor for the most his bonds.” Although self-serving, this

trivial offenses.?4 statement rings true when measured Upheld by the Alabama Supreme Court against evidence that local jailers were so

in 1883, the Alabama surety law came casual in releasing prisoners to farmers

before this court on at least fifteen other like Williams that they did not even bother occasions prior to 1914. Again, the volume to record the names of sureties. Clearly, of higher-court litigation suggests a heavy there was nothing unusual in the way Wiluse at the local level. In 1914, however, the liams acquired his labor. Almost three United States Supreme Court declared the weeks after Williams and his foreman were

law to be in violation of the Thirteenth found guilty of murder, the head of the Amendment (United States v. Reynolds). Atlanta office of the Federal Bureau of In this case Ed Rivers, a Negro convicted of Investigation said he was receiving new petty larceny, had been sentenced to pay a reports of peonage daily.”® $15 fine plus court costs of $43.75. Work-

ing these charges off in jail would have ;

taken Rivers sixty-eight days, but instead Convict Labor he chose to sign a surety contract obligat-

ing him to work nine months and twenty- When Ed Rivers chose to accept a tenfour days to pay off his fine and fees at the month surety contract in lieu of a sixtyrate of $6 a month. Before fulfilling his eight-day jail sentence he made a rational

agreement Rivers deserted his new choice, for the southern penal system

employer and was rearrested. This time stood as the ultimate sanction behind the the judge sentenced him to pay a fine of surety system and every other aspect of one cent plus costs of $87.75, and Rivers involuntary servitude. Those who could signed a new surety contract with G. W. not, or would not, be bound to a surety Broughton in which he promised to work would work for the direct benefit of govfor over fourteen months to pay his newly | ernment instead. The methods of handling acquired debt. Concurring with the major- convicts that evolved in the post-Civil War

ity opinion, Justice Oliver Wendell era aimed to provide a maximum of deter-

Holmes observed: ‘‘The successive con- rence and punishment at minimal cost to tracts, each for a longer term than the last, the taxpayers. Thus, between 1865 and are the inevitable, and must be taken to 1867, Alabama, Georgia, South Carolina, have been the contemplated outcome of Texas, and Virginia gave local authorities the Alabama laws [of 1883 and 1907. ]’’25 the right to use county prisoners on such As events on the infamous Jasper public projects as roads and bridges. These County, Georgia, peonage farm of John S. five states together with Florida and MisWilliams would show, the Reynolds deci- sissippi also made explicit provision for sion invalidated the Alabama surety laws, the hiring out of county prisoners or those but it did not end the practice of recruiting who had committed minor crimes and labor from southern jails. In 1921, fearing could not pay their fines.2” This procedure discovery by government agents, Williams did not require the convict’s consent, and

—- 328

William Cohen a : he did not have to sign a surety cating this system in 1877, South Carolina

agreement. , Redeemer George D. Tillman asserted, The southern states were somewhat “The negro has aconstitutional propensity

slower to lease the inmates of their peni- —_to steal, and in short to violate most of the

tentiaries than they were to permit hiring © ten commandments. The State should out at the county level, but this changed as farm out such convicts even for only their it became clear that the states could make a subsistence, rather than compel taxpayers profit from convict leasing. By 1880 every to support them in idleness.’’ The returns former Confederate state except Virginia from convict labor far exceeded subsishad a full-blown state leasing program. _ tence. State prisoners played major roles in

The lessees paid the states for the right to phosphate mining and turpentining extract a maximum of labor from the pris- — (Florida), in coal mining (Alabama, Tenoners, and they took the responsibility for nessee, and Georgia), and in road building

guarding and maintaining them. Using (North Carolina and other states). Most shackles, dogs, whips, and guns, they important of all was the involuntary con-

created a living hell for the prisoners, tribution of convicts to the South’s

which often bore a striking similarity to railroads. In the capital-starved post-Civil the most lurid abolitionist stereotypes of War era they helped construct or recon-

slavery.?8 , , struct the railroads of every southern state

_ Mortality rates were shocking. Of 285 save Louisiana. There, the levees took preconvicts sent to build South Carolina’s cedence.?! Not surprisingly, as the advan-

Greenwood and Augusta Railroad ~ tages of convict labor became more

between 1877 and 1880, 128, or 44.9 per- apparent, the zeal of law-enforcement cent died. Tennessee boasted a model] leas- authorities showed a corresponding rise.

ing program, but during the biennium By 1910, when Ed Rivers signed his first 1884 -1885, when she had an average of surety agreement, the southern prison sys600 prisoners, there were 163 deaths. Con- tem was improving, but not so fast as to victs generally fared worse than this in induce him to opt for a short jail term. The other southern states. By way of contrast, leasing system was on the road to extincthe annual death rate in the prisons of New tion, and the states were taking responsi-

Hampshire, Ohio, Iowa, and Illinois dur- bility for guarding and maintaining ing the period 1881-1885 was slightly prisoners even when they were let out to

more than one percent. South Carolina’s — private contractors. During the next three warden remarked in 1879 that ‘‘the casual- decades conditions continued to improve,

| ties would have been less if the convicts at least when compare to the barbarous were property having a value to pre- 1880s. In 1928 Alabama became the last serve.’’29 His remark implies that most of state formally to abandon the leasing sys-

the convicts were black, and this was tem, and by 1932 the annual mortality rate indeed the case. Taking population dif- of its Negro convicts was 2.5 percent. The

ferences into accounts, in the period comparable figure for white prisoners,

around 1880 the ratios of Negro to white however, was 0.7 percent. Less is known prisoners in North Carolina, Georgia, and about conditions at the county level, South Carolina were roughly 13:1, 11:1, where misdemeanants often served their

and 7:1, respectively.° terms, but there is reason to believe that Figures like these were not accidental, improvement proceeded more slowly

for the southern prison system was being here. In some states, for example, county shaped specifically to deal with blacks. leasing remained legal after the practice Guided by a white determination to return had been abolished at the state level. Such the Negro to ‘“‘his place,” the problems of improvements as there were may well crime, tax relief, internal development, have escaped the attention of convicts on and control of the labor force all inter- the chain gangs. Brutality remained omnisected in the convict-lease system. Advo- _—_ present, and the convicts who built the

329

, Negro Involuntary Servitude in the South, 1865-1940 South’s roads were often housed in mov- 23 percent of the South’s state prisoners

able cages that provided less space per (largely felons) served on chain gangs, man than would a six-by-four-by-four-foot while 49 percent of its county prisoners

box.3? oe (largely misdemeanants) were engaged in During the 1930s blacks still constituted road work. That the overwhelming majorthe great majority of those serving on the ity of these county prisoners were black is chain gangs of Alabama, Georgia, Virginia, beyond doubt.2° Even in the 1930s the

and Florida, and the situation was cer- southern prison system continued to suptainly similar elsewhere in the South. In ply cost-free labor for internal develop-

September 1932, Alabama’s 1,089-man ment. At the same time the continuing road force was composed entirely of harshness of the prison system served as a Negroes. In Georgia, where blacks potential weapon for any white seeking to accounted for only 37 percent of the total intimidate his Negro employees.

population in 1930, they constituted 83 In September 1937, Warren County, percent of the total prison population in Georgia, cotton growers sought to prevent 1932.33 Even within the prison population, farmers of adjoining Glascock County from there was a further differential. As Table enticing away their black laborers. Desper-

_ 26.2 shows, the percentage of white felons ate for hands, the men from Glascock , serving on Georgia’s chain gangs was only County had offered almost double the rate somewhat less than the comparable figure being paid for cotton pickers in Warren for Negroes (79 percent versus 90 per- County. Unwilling to abide by the law of cent).34 Considered outcasts, Georgia’s supply and demand, Warren County plantwhite felons were treated none too gently. ers mobilized to stop the depletion of their -Misdemeanants posed a different problem, labor force. Sheriff G. P. Hogan described and only a handful of whites received jail | the ensuing events: “‘There was no trouble,

sentences for minor offenses. Overwhelm- although a number of them [the Warren ingly those jailed for misdemeanors in County men] carried guns and fired them Georgia were blacks, and beyond this dis- into the air. They told the pickers there was parity the percentage assigned to county plenty of cotton to pick in Warren County

labor far exceeded the percentage of and asked them to stay home and pick it.

whites given similar sentences. With but They decided to stay.’’37 few exceptions, those assigned to county labor worked on the chain gang, either fix- Conclusion ing or building roads (2,348 misdemeanants served in this capacity) or doing other The planters of Warren County might

arduous labor.35 have brought charges of enticement

The situation in Georgia is indicative of against their competitors, but they did not. that in other southern states. In 1932 only Yet this incident is at least as representaTable 26.2 Distribution of Georgia Prisoners

, December 31,1932 _ . Felons Misdemeanants Race Total State Chain Total State County

Farm Gang Farm Labor Negro 3,229 2,898 100%331 10% 90%3,925 100%212 5%3,713 95% White 100% 1,19621% 24779% 949100% 273 141 52%132 48% Total 4,425 4,198 353 3,845 % Negro 73.0578 57.33,847 75.3 93.5 60.1 96.6

330

WilliamCohen | tive of the workings of the system of invol- of involuntary servitude because it often untary servitude as the many cases where occurred at times and places where labor legal and quasi-legal processes came into was superabundant. When this was not the

, play. Law gave the system structure and case, white southerners frequently took

the appearance of legitimacy, but at base steps to prevent blacks from departing. it was rooted in a state of mind that arro- This had been the purpose of the emigrantgated to whites the right to use Negro agent laws, and it was also the aim of those

labor when and as they chose. Tran- who sought to use all means, including | scending peonage as it transcended the violence, to prevent blacks from leaving

legal structure which partially defined it, the South in 1916 and 1917.38 The system the system of involuntary servitude was a of involuntary servitude did not always

unique blend of slavery and freedom function perfectly; resourceful blacks

which gave whites the option of limiting could and did get around its restrictions. black movement while leaving Negroes Just as the laws of slavery defined the otherwise free to come and go as they ideals and fears of the slaveholders rather

pleased. 7 than the realities of the system, so too with It was this feature of the system which the laws of involuntary servitude.

created the paradoxical situation whereby Writing in 1938 Jonathan Daniels involuntary servitude coexisted with a quoted a southern editor as telling him; good deal of black mobility. Prior to 1916 ‘Slavery is still in force... but not genermany Negroes moved from the Southeast ally profitable.3° The statement was an to the Southwest, and after that date large exaggeration, but hardly so far from the numbers began moving north. Such move- truth as one would like to believe. ment was possible within the framework

William B. Hixson, Jr.

Moorfield Storey and the Struggle for Equality

The organization of the National Asso- characteristic of twentieth-century liberciation for the Advancement of Colored alism than of nineteenth-century reform.

People in 1909 and 1910 was the joint It is unclear, therefore, whether their

achievement of Negro militants and of dedication to the Negro’s cause came priwhite reformers. That some Negroes marily from the abolitionist memories of decided to assert their human dignity and their childhoods or from the liberal envi-

demand their constitutional rights is not ronment in which they spent their

surprising. What is surprising, since anti- careers.

Negro prejudice was far more bitter and In contrast, the first president of the more widespread then than now, is that Association and its counsel in its first some white men and women joined them three important cases before the Supreme

in their strugglefor equality. Court cannot be considered a twentieth-

Two of the white founders of the Asso- century liberal. Until he died in 1929 at ciation—Oswald Garrison Villard and the age of eighty-four, Moorfield Storey Mary White Ovington—have, in their adhered to the values he had acquired as a

autobiographies, indicated some of the pillar of the legal profession and as a

factors that impelled them toward cham- Mugwump reformer in the late nineteenth

pioning the Negro’s cause.! Both— century. Although willing to accept social

Villard, particularly, because of his legislation on the state level, he consisGarrison ancestry—have some claim to be tently opposed federal intervention and

considered inheritors of the civil rights remained suspicious of the more ambitradition of the previous century. But tious programs of the progressive moveOvington, as a social worker trying to alle- ment. Storey’s outlook on racial matters

viate the condition of the poor, and Vil- was little different from that of Villard lard, as a crusading journalist and an and Ovington, but because the reinforcing ardent civil-libertarian, tended to sympa- effect of a general liberalism is absent, the

thize automatically with the victims and sources of his dedication to the Negro’s

outcasts of society, a reaction more cause is easier to follow. Specifically, his

| | Reprinted legalfromarguments on behalf of the National the Journal of American History, vol. Association for the Advancement of Col60, no. 3 (1968), 533-554 by permission. Copyright, ored People reveal the influence of 1968, Organization of American Historians. Charles Sumner, who made the most not331

332 }

William B. Hixson, Jr.

able nineteenth-century argument that the —and transportation, remained unfulfilled

law must make no racial distinctions. at the time of his death.® As they found that the general state- This was the man with whom Moorfield ments of equality in the state constitu- Storey had spent two of the most impres-

tions failed to reach the massive _ sionable years of his life. Through his

discrimination against the free Negroes of father he had received an invitation in the the North, abolitionists tended to demand fall of 1867 to become Sumner’s personal specific prohibitions on racial discrimina- secretary, and in late November of that tion.2 In 1849 Sumner introduced into year the twenty-two-year-old Storey, fresh American jurisprudence this new mean- from a year at Harvard Law School, left for

ing of the phrase “equality before the Washington.? Upon moving into

law.’’ In that year, he served as counsel for Sumner’s house the following January, a Negro couple whose daughter was pro- Storey soon became aware of some of the hibited by the rules of the Boston School senator’s idiosyncracies: ‘‘Mr. Sumner is

Committee from attending the neighbor- not great at conversation, properly so hood public school because it was res- called, I think. He can make himself very tricted to whites. Since only Negro agreeable if he likes, and frequently does, children were prevented from attending but he either does all the talking himself

_ the schools nearest them and wereinstead —_ and goes off into long disquisitions, or he

sent to all-Negro schools often at a consid- simply draws out the other person and erable distance, they were made, Sumner _lets him do the talking, so it is a monoargued, to feel inferior, and white chil- logue on one side or the other.’’8

dren were made to regard them as such. As the months passed, Storey became

The Negro schools did not have facilities | the daily companion of a man desperately

equal to those attended by whites, but in search of friendship beyond the calcueven if they had been equal, Sumner lated associations of official Washington. explained, ‘‘this compulsory segregation That Sumner himself bore much of the

from the mass of the citizens is of itself an responsibility for his social isolation has

inequality we condemn’’. In view of the been one of the main arguments of his - general principles of “equality before the recent biographer,? but Sumner seems to law’”’ embodied in the Massachusetts con- have had a genuine affection for Storey,

stitution, the Boston School Committee one which the younger man returned in

could not, in justice, make such a full.

distinction.? _ | In the spring of 1869, Storey completed

Sumner took this commitment to civil his clerkship with Sumner and returned equality with him into the Senate two to Boston. Apparently he had cut himself years later and, once emancipation 7 off from the influence of Sumner’s ideas became a certainty, devoted the remain- as well. During the last three decades of ing years of his career to securing civil — the nineteenth century, he enjoyed a pros-

equality for all the citizens of the United = perous legal career and devoted his States. Though directly responsible for remaining time to the various civic interminor gains for Negroes during the Civil ests of his fellow Mugwumps: civil-serWar,’ his greater significance lies in his vice reform, low tariffs, independent articulation of the emerging postwar politics, and anti-imperialism. The Mugnorthern sentiment that the Negro be wumps began as opponents of both the granted the rights of citizenship.5 Ultima- corruption of the Grant administration tely, his persistent demands for universal and the radicalism of the Greenbackers. manhood suffrage were realized in the Regarding themselves as the guardians of Fifteenth Amendment; but his other great social and moral order, they began to goal, a bill prohibiting segregation in all question the unlimited application of the public facilities for education, recreation, principle of self-government; the first vic-

333

Moorfield Storey and the Struggle for Equality

tim of their growing skepticism about scholars is to be accepted, integrated facildemocracy was the recently enfranchised ities and Negro participation in politics

— freedman. , continued in many parts of the South Seeing only the corruption of the Radi- until the turn of the century. cal regimes in the South, as early as 1872 In the 1890s, to heal the wounds from

many Mugwumps urged the end of the bitter fights between industry-

Reconstruction; and they soon became 7 oriented Redeemers and angry farmers, among the most articulate supporters of | the doctrine of “white supremacy’ was the idea of sectional reconciliation. Presi- invoked in full force. The proscriptive dent Rutherford B. Hayes’s withdrawal of | devices which followed—the “legal” dis-

federal troops from the South in the franchisement and statutory segregation spring of 1877 was more symbolic than of the Negro—received constitutional

substantial; of far greater importance in endorsement from the Supreme Court and the “road to reunion” were the Supreme | widespread approval by the American Court decisions, between 1875 and 1883, public. No Mugwump had tried harder to which seriously weakened the Recon- assimilate “home rule” for the South with

struction legislation protecting the freed- equal rights for the Negro than Carl men’s civil rights. Like the other Schurz. But this new proscription, beginMugwumps, Storey does not appear to ning in the 1890s, led Schurz to write have protested the Court’s decisions. Storey that ‘‘unless the reaction now Indeed, when Senator George F. Hoar and going on be stopped, we shall have to Representative Henry Cabot Lodge madea _fight the old anti-slavery battle again”; final effort to restore federal protection to | and before his death Schurz publicly Negro voters in 1890, Storey condemned warned the South against finding itself their bill as attacking ‘“‘the root of consti- “once more in a position provokingly

tutional government and... parent of the offensive to the moral sense and the grossest abuses and gravest dis- enlightened spirit of the world outside. 1?

- turbances.”’1° z The trend, beginning in the 1890s, Though it is doubtful that many Mug- seems to have evoked within Storey the

wumps preserved the concern for the dedication to civil equality that he had freedmen that they had shown in the received from his close association with

aftermath of the Civil War, it is quite pos- Sumner. By the early years of the twensible that a minority of them (Storey, for tieth century, his concept of civil equality example) acquiesced in the dismantling (like Sumner’s) embraced not only the of federal protection of civil rights in the Negro but also all minorities. ‘“The absurd

1870s and 1880s on the assumption that, prejudices of race and color’ would

since Southerners themselves appeared to become, for Storey, equally obnoxious accept Negro rights, there was no need for and equally worthy of attack ‘‘whether federal interference. Certainly, both the they bar the Negro from his rights as a pledges of southern leaders such as Wade man, the foreigner from his welcome to Hampton, Lucius Q. C. Lamar, and Alex- our shores, the Filipino from his birthander Stephens, and the investigations of right of independence, or the Hebrew the former abolitionist Thomas Went- from social recognition.’’’* He sharply worth Higginson confirmed this view." It qualified the anti-immigrant aspersions is easy to say that Higginson, a staunch he had made in his Mugwump days and supporter of Hayes’s policy, and the began to defend immigrant citizenship;1 Southerners, still fearful of the reassertion after 1899 he fought continuously on of federal power, had vested interests in behalf of Philippine independence. But the Compromise of 1877 and that this bias his main concern was, as Sumner’s had -may have colored their views. But, if the been, with the protection of the Negro argument advanced by numerous modern _American’s civil and political rights and

334 |

William B. Hixson, Jr.

with the expansion of his opportunity for pine policy, Secretary of War Elihu Root,

advancement in all areas of American that Negro suffrage had been a failure,

society. | which elicited Storey’s first major public

Storey’s defense of the Negro first defense of Negro citizenship. Just as no emerged as a theme in the debate over country had the right to deny national Philippine annexation in 1899-1900. independence to another, no race within a

Unlike some of his associates in the anti- country had the right to deny citizenship imperialist movement whose prejudices to another. The purpose of congressional led them to oppose the incorporation of Reconstruction, he told an audience, had another colored people,!* he was shifting not been to establish good government, his own attitudes in a different direction. but to grant self-government to the emanThe denial of self-government to the Fili- cipated slaves:

pinos was wrong in itself, he argued, but |

doubly wrong because it would be used to The object was not primarily to secure rationalize the denial of civil and political well-tilled fields, well-ordered towns, an rights to Negroes at home. By the time of industrious laboring class, nor even a legishis anti-imperialist campaign for Con- lature, a bench, and an executive taken from gress in 1900, Storey had firmly linked in the ablest men in the state. All these results his own mind the suppression of Negroes’ had been secured by slavery. Had these been

in the South and the suppression of the the object of our policy, slavery need never

natives in the Pacific possessions: | have been destroyed. It was because these advantages, the material prosperity of a few,

No man of anti-slavery antecedents can had been gained by the degradation of a fail to regard with horror the treatment of the whole race,—because millions of human colored race in the South and the attempt to beings had been denied the rights and hopes disfranchise them. The whole reaction of humanity, that slavery was abolished, and against this unhappy race, both in the north- unless we carried the work through we had ern and southern states, is deplorable. better never have begun it. The same reason

While, however, the President and the that led us to abolish slavery forbade us to

Republican Party are denying the doctrine of establish any legal inequality between man human equality which the party was formed and man. Anything less than equality of

to maintain, and are justifying conquest and rights was sure to be the seed of future despotic methods in the Philippines and trouble.19

Porto Rico by the argument that the inhabi- ,

tants of these islands are unfit for freedom There had been corruption under the because of their race or color, it is only to be Reconstruction regimes, ‘‘an orgy of cor-

expected that the same doctrines will be ruption after Negro suffrage was granted”’

| applied at home.?7 — this Storey freely admitted. “But,” he

, asked, pointing to the current outcry

Four years later, as the Roosevelt adminis- against the “‘bosses,”’ “‘can we insist that tration took no action to stem the mount- — the color is the cause? While Pennsy]l-

ing tide of disfranchisement and vania bows to Quay; while Montana elects segregation, the reasons seemed apparent. Clark; while Addicks owns Delaware;

“The Philippine war has paralyzed the while the trials at St. Louis reveal the conscience of the Republican Party,”’’ nature of her rulers, and Minneapolis is Storey said; ‘it cannot denounce the sup- punishing Ames, are we sure that white pression of the Negro vote in the South by suffrage is a success?” And the South,

any argument that does not return to con- which was still fighting corruption, could demn the suppression of the Philippine hardly blame its present condition on the

vote in Luzon and Samar.’’?® black man, for, in the broadest sense,

Significantly, it was a remark attributed “since 1876 Negro suffrage has not been to the administrator of Roosevelt’s Philip- tried and therefore has not failed.”’2°

335

Moorfield Storey and the Struggle for Equality

In his defense of civil rights, Storey may then in control of the Republican Party, and

have begun as one of those who, as his Thad Stevens was only one force.¢ | friend Charles Francis Adams, Jr., put it,

‘plant themselves firmly on what Rufus Against the natural and social scienChoate once referred to as the ‘glittering tists, Storey was less sure in his argugeneralities of the Declaration of Indepen- ments than he had been against the dence.’’’?1 But, in an age when moral historians. By the time he died, he had

judgments were increasingly argued on acquired a notable collection of books on the basis of empirical evidence, Storey Negro history and society, but studies in found that his commitments led to factual psychology and anthropology were disagreements. His first debate was with absent. He had been isolated too long the historians. Although Storey was con- from scientific thought to be more than sulted by his friend James Ford Rhodes vaguely aware that a new wave of anthrowhen Rhodes wrote his multivolume his- pologists was attacking long-established

tory, Storey, nevertheless, remained one notions of biological and cultural | of the more persistent critics of the com- “superiority.”?7 Instead, he used whatpleted work.2? Rhodes, Storey felt, had ever arguments he could and combined

drawn a one-sided picture of actual condi- the general knowledge acquired in a libtions during Reconstruction; discussions eral education, the personal experience of with prominent white Southerners had sixty years, and the discipline of a sharp given Storey the impression — at least he legal mind. In 1913, for example, he wrote to Rhodes — ‘‘that we in the North exchanged views on “race purity” with have a very exaggerated notion of the Harvard’s president, Charles W. Eliot. For trouble in the South” occasioned by the Eliot, who is currently enjoying a reputa-

carpetbag regimes.?3 tion as an exponent of racial tolerance,?® Simultaneously Storey carried on a “the experience of the world demon-

somewhat more extended debate with strates upon an immense scale that peo-

Adams. Increasingly drawn to the South ples far advanced in the scale of

through his researches on Robert E. Lee, civilization cannot profitably mix with Adams thought that ‘‘the reconstruction backward peoples. The purer a race is policy of 1866 we forced on the helpless kept, the more likely it is to maintain itself

states of the Confederacy was worse than and prosper.’’?? Storey disagreed and

a crime; it was a political blunder, as argued: ungenerous as it was gross.’’** But it was

not true, Storey wrote to Adams, “that the A priori, it is hard to see why the admixreconstruction policy was ‘conceived in ture of different breeds which has produced passion’ and devoid of statesmanship. It is such wonderful results in the vegetable and the fashion to forget that white recon- animal worlds should be so disastrous to the

struction was tried faithfully and that human race. Nature demands variety, and Johnson’s white legislatures at once intermarriage between members of the same

passed laws which in effect re-established family or class long persisted in tends to proslavery.’’25 Nor was it true, Storey argued, duce degenerates. Even the fact that the that Reconstruction had been engineered results are jeered at and cailed hard names is by a small group of ‘‘vindictive’’ Radicals: not conclusive. The term “cur” has long been a term of reproach, but no one who The reconstruction policy was largely knows dogs can fail to admit that the most framed and was supported by the most con- admirable qualities of canine nature are very servative men in the Senate like Trumbull, commonly found in dogs of very mixed Grimes, Sherman and the group that voted ancestry.*° against impeachment ... the policy was adopted in view of the exigencies of the time = Whatever the merits of the abstract by the sober judgment of the men who were issue, Storey never doubted the absurdity

336

William B. Hixson, Jr. , , of “race purity’’ in American society, years, we can then form a sound opinion as where there had been widespread sexual to their respective abilities, but in my own

contact: time I have seen men belonging to races , which were deemed inferior establish their You wish to keep the white blood pure [he right to be regarded as the equal of all their wrote a southern correspondent] and free fellow men. A notable instance is the case of from contamination with an inferior strain. the Jews, who are treated in Russia very Let me ask you, do you? If the public opin- much as the colored men are treated in the ion of the South disgraced a man who estab- South, are denied social equality, herded lished relations with colored women, and together in quarters, and generally regarded

became the parent of colored children, I as hopelessly inferior. We know in the should acquiesce in your contention, but it United States that this opinion is does not, and it is not the presence of a mar- unfounded.*

riage ceremony which makes the contamina- Those who wanted to subjugate the

- tion but the mingling of blood as a fact. From Neero were really unsure of } es racial the time when the colored people were first ‘iterioni ty” the y tried to establish He

brought into this country until now there asked the irrefutable uestions “If the

has no instinct prevents the inferior, N - hovel leswhy Far} hydo d a been , , egro is sowhich hopelessly mingling of blood, and until there. is I feel the whites fear the effect of education?

_ that notthey race pride whichagainst controlshis theprogress Why d ; ; ; ,; it| yisdo struggle action of the white people of the South.°* upward?” He could only conclude: ‘‘The

Whatever the causes of the trend toward oP is 6 0 oy adv nim fetal ation. 8 : racial discrimination, a sudden awareness confession that the assumption of white of the need to preserve “‘racial purity’ was superiority is unsafe” .34

not one of them. Storey had traveled " _Storey’s contention that Negroes could the South before the days of institutional. not be fairly judged unless granted equal

| ized Jim Crow, and he Pat ticularly opportunities is best revealed in his conremembered one incident of interracial tinual fight against discrimination in pri-

harmony on a New Orleans streetcar: vate institutions. His correspondence is

, | full of incidents of minor indignities suf-

There was no trace of objection to this —_— fered by Negroes: a doctor barred from the

association of white and colored during the staff of a public hospital, a girl refused whole trip, but had we crossed the street and dormitory accommodations at Smith Col-

taken the railroad train these same people lege, a worker barred from employment would have been given separate cars. Such by a “lily-white” union.35 In two notable discrimination is fashion, not instinct, and campaigns he successfully fought against other illustrations in abundance could be _ the exclusion of Negroes from the Amerigiven. It is a bad fashion, not an uncontroll- can Bar Association? and against the able instinct, against which we contend.* segregation of Negro students in separate

, , | , dormitories at Harvard College.3” But, in

To all those—whether historians or bio- the presence of mounting Tacial oppres-

logists, his friends or occasional corre- sion, Storey had long recognized that |

spondents — who justified their demands individual gestures on behalf of equal for the subjugation of the Negro by his opportunity would do little to turn the supposed “inferiority,” Storey answered tide: “The whites in the South are one that their case against the Negroremained _ party in the contest, and the interests of

unproven: , the other party are not safe in their hands. They had the full charge of the Negro

When the colored men have had an equal problem for a great many years, and they chance with the white man, and as for many made a great mess of it, so that I desire to

337

Moorfield Storey and the Struggle for Equality

reserve the right to bring to bear all the Negroes to sit on juries,4? and a California

public opinion that we can muster in case striking down those building

favor of the Negro in the South and else- requirements for laundries framed in such

where.”’38 To implement his argument a way as effectively to prohibit Chinese that the United States ‘‘is the country of establishments alone.*4 , all its citizens, and black men have under The first Supreme Court case in which

our Constitution all the rights of white Storey appeared for the Association

men,’*? in 1910 he accepted the presi- involved the constitutionality of the Okladency of the National Association for the homa “grandfather clause.” The grandfa-

Advancement of Colored People. ther clause was one aspect of the “‘legal”’

Unlike W. E. B. Du Bois, Villard, Oving- disfranchisement of the Negro in the ton, and Joel and Arthur Spingarn, Storey southern states. States imposed restrictive had little to do with the day-to-day prob- suffrage requirements while at the same

lems of the NAACP. Any organization time passing exemptive clauses under devoted to securing complete equality which illiterate whites might vote.*5 In a

before the law, however, would be largely case arising from the first of the disfrandependent upon litigation for the realiza- chising states, Mississippi, the Court had

tion of its goals, and here someone with held that the requirements themselves, Storey’s legal skill and professional pres- by-passing as they did “race, color, or pre-

tige was invaluable. Relying on the care- vious condition of servitude,” did not vio- ,

ful investigations conducted by late the prohibitions of the Fifteenth Association branches and the preliminary Amendment; only the discriminatory preparation of cases by local lawyers, enforcement of those requirements would Storey appears to have determined the be unconstitutional.4® In several other constitutional basis for the Association’s cases decided during this period, the arguments. In several notable cases before Court dismissed voting suits on a variety

the Supreme Court, he was thus able to of grounds: the election in question had halt the judicial trend of three decades already been held; registration could not

toward racial proscription. be enforced under the provisions which When the Association was formed, the the plaintiff charged were invalid; and effective expression of civil equality in plaintiffs could not sue for damages in

public policy had been severely limited equity.*’ an

by two judicial doctrines: “‘state action,”’ In 1907 Oklahoma was admitted to the which appeared to exempt private dis- Union. Its constitution provided for unicrimination and intimidation from the versal manhood suffrage, with only resiprohibitions of the Fourteenth Amend- dence requirements. In 1910, however, an ment,*° and the ‘‘separate but equal’’ doc- amendment was added which required a

trine, which required proof of actual literacy test for all voters except those

inequality of facilities to show a denial of who were “on January 1, 1866, or at any

“the equal protection of the laws.’’*} time prior thereto, entitled to vote under

Though opposed to segregation on princi- any form of government”’’ or anyone who

ple, the NAACP was forced to work was a “‘lineal descendant of such person.”’ within that framework — fully aware that Obviously, few Negroes were entitled to only those acts of government whose vote in the United States of 1865. Acting denial of ‘‘equal protection” were blatant under a Reconstruction statute, still viable

would be declared unconstitutional by as far as intimidation in congressional the Supreme Court.*? In the years since elections was concerned, the federal gov-

Reconstruction, there were two main ernment brought indictments against cer-

decisions to which the association could tain registrars, in part for their

appeal as precedents: a West Virginia case administration of the act. They were con-

affirming the constitutional right of victed and sentenced to one year in a fed-

338

William B. Hixson, Jr. , eral penitentiary. They appealed to the they profited by it in the increased repre- Eighth Circuit Court; the sentence was sentation [for themselves].”5° With this affirmed; they appealed to the Supreme unfortunate possibility in mind, he Court. Action on the part of the govern- dropped any idea of relying on the Fourment had been continued during the tran- teenth Amendment in his argument and

sition from the Taft to the Wilson decided to litigate under the Fifteenth administrations; when the case was Amendment instead.

finally argued, the government was repre- Because he favored the latter approach, sented by John W. Davis, a decade away Storey was personally committed to his from his presidential nomination. The brief in the ‘“‘grandfather-clause”’ case. ‘‘If role of the NAACP was limited to an it is possible for an ingenious scrivener to -amicus curiae brief, which had been filed accomplish that purpose of disfranchise-

by Storey. ment by careful phrasing, the provisions

In his own attitudes toward suffrage, of the Constitution which establish and Storey differentiated between personal protect the rights of some ten million colprinciple and legal precedent. As a matter ored citizens of the United States are not of principle, ‘‘I rather agree with Clay that worth the paper on which they are writno people is fit for any government except ten, and all constitutional safeguards are self-government, though I do not feel cer- weakened.’’5! Like Davis, he argued that tain that any of us are any too compe- the effect of the Oklahoma amendment tent.’’48 But as a matter of law, “the denial was discriminatory and, therefore (citing

or abridgement of the right to vote need the Yick Wo v. Hopkins precedent), not be illegal or unconstitutional. An edu- unconstitutional. In its decision, the cational qualification for example, is nei- Court paid homage to state control over

ther ... The same would be true of a elections: ‘‘The [Fifteenth] Amendment property qualification.’’49 But, even does not change, modify or deprive the

though such restrictions might be “‘consti- States of their full power as to suffrage

_ tutional,” if they were used, the second except of course as to the subject with section of the Fourteenth Amendment which the Amendment deals and to the would automatically come into force extent that obedience to its command is “when any state denies to any male per- necessary.’ This case, however, was manson who is an inhabitant of that state and ifestly one involving the denial of suffrage at the same time a citizen of the United for reasons of “‘race, color or previous con-

States the right to vote, or in any way dition of servitude.’’ The Court

abridges it, except for participation in concluded: rebellion or other crime, the basis of

representation shall be reduced” [Storey’s We are unable to discover how, unless the

paraphrase]. prohibitions of the Fifteenth Amendment But if the Court accepted his argument were considered, the slightest reason was on this point and “reactivated” the sec- afforded for basing the classification upon a ond section, two consequences might period of time prior to the Fifteenth Amendoccur. On the one hand, “if the South ment. Certainly it cannot be said that there finds that it loses power because the basis was any peculiar necromancy in the time of representation is reduced, it would be a named which engendered attributes affectconstant motive to modify their laws and ing the qualification to vote which would

admit colored men to the polls...” On not exist at another and different period the other hand, Storey felt, the South just unless the Fifteenth Amendment was in might accept such conditions as the price view.52 of white supremacy. If it did, the Negroes

would remain disfranchised while the Though the Supreme Court struck

North would be apt to say “that they down the grandfather clauses, other barwould not disturb the situation as long as riers—among them, the all-white pri-

339

Moorfield Storey and the Struggle for Equality

maries of a one-party South—remained Amendment.’ In the early years of the for those Negroes who were courageous twentieth century, however, the device | enough to attempt to vote. In Texas the more often represented the conclusion of Democratic state committee passed a res- the trend toward racial proscription in olution in 1922 excluding Negroes from the South. Beginning with Baltimore, the party primaries. One Negro sued, and southern cities passed ordinances freezagain the Supreme Court on appeal ruled ing areas with a majority of one race into that no issue was presented since the permanent “‘white”’ or “‘black’’ sections.58 election had already occurred.*? Various The Baltimore ordinance was declared

factions within Texas politics pushed for unconstitutional by the Maryland

a more thorough exclusion, and in 1923 Supreme Court on the grounds that it did the legislature passed a bill which prohi- not adequately protect the rights of the

bited Negro participation in party pri- present owners of property and that a maries. Dr. L. A. Nixon, head of the El municipality did not have the authority Paso NAACP chapter, brought suit for to enact such an ordinance.5? Where the damages; the suit was dismissed by the rights of owners were clearly protected, district court, but finally taken on appeal however, state courts tended to uphold

by the Supreme Court. Storey had similar statutes. °° regarded the statute as ‘‘absurd’’ and The city of Louisville passed an ordihoped “the Supreme Court [would] sus- nance classifying certain blocks as

tain the case’’.54 Though the NAACP’s ‘“‘white’ and ‘‘colored’’, and no owner or case was finally argued by Fred Knollen- resident of the other race on such a block berg and Arthur Spingarn, Storey helped would be compelled to sell his property, to prepare the brief. Its main point was but, should he do so, the property would

that the 1923 act violated the Fifteenth as revert to the predominant race in the well as the Fourteenth Amendment classified area. Drawn as it was to protect

because Texas statutes considered the rights of ownership, the ordinance primary a public election; thus Negro passed a test in the Kentucky State exclusion violated the prohibition of Supreme Court.®* For the NAACP, denial of the suffrage because of ‘‘race, already active in the fight against color, or previous condition of servitude’”’ enforced segregation, the Kentucky deci-

of the one amendment, and the guarantee sion presented a major challenge. The

of ‘the equal protection of the laws” of Association decided to test the ordi-

the other.55> Speaking for the Court, nance. In the fall of 1914, therefore, Wil-

Oliver Wendell Holmes succinctly liam Warley, head of the Louisville

declared the Texas statute unconstitu- chapter, arranged to buy a lot for two

_ tional: ‘“‘We find it unnecessary to con- hundred fifty dollars from a sympathetic sider the Fifteenth Amendment, because white, Charles H. Buchanan. To provide

it seems to us hard to imagine a more a cause for legal action, Warley said he direct and obvious infringement of the would pay the final one hundred dollars

Fourteenth.’’5® after he made sure the transaction did not In addition to the more blatant disfran- violate the ordinance. When he found

chising procedures, another area that that it did, he then refused to pay; seemed to the Association to involve dis- Buchanan brought suit, but the chancery criminatory ‘‘state action’? was enforced court ruled for Warley. Buchanan then

residential segregation. The first targets appealed to the state supreme court, were residential-segregation ordinances. which also ruled against him. By 1916 The original of such ordinances involved the case was on the docket of the United

the Chinese in San Francisco and was States Supreme Court, and Storey,

declared unconstitutional by a United assisted by the Louisville attorney ClayStates District Court as violating both the ton L. Blakey, was prepared to present treaty with China and the Fourteenth the NAACP‘s argument. Perhaps because

340

William B. Hixson, Jr. -

only seven justices were sitting at the condition vaguely described as ‘social time, Chief Justice Edward J. White equality.’ ’’* It was specious to say that ordered a rehearing the following term, the law also affected whites, for it was and the case was finally argued early in the Negro’s advancement that was being

1917. | re hindered. Storey quoted Anatole France’s

The spectacle of the NAACP defending aphorism that the law forbids the rich, as a white property owner trying to collect well as the poor, from sleeping under the payment from an unwilling Negro (even bridges of Paris and added, ‘“‘A law if it was prearranged) was not without its which forbids a Negro to rise is not made

ironies. The defendant, as Storey just because it forbids a white man to

explained, “is not complaining of dis- fall.’’65 crimination against the colored race. He With the intention of hindering the is not trying to enforce their rights, but to mobility of its Negro population, Louis-

enforce his own.’’®? By restricting the ville was not only denying it property freedom of Louisville citizens, black and rights secured by the “privileges and white, to buy and sell property, the ordi- immunities” clause of the Fourteenth nance had deprived them of income from Amendment but was also denying it the sale of property without the due “equal protection of the laws.’’ Whatever process of law and thus had violated the the trend of decisions from Plessy v. Fer-

Fourteenth Amendment. That may have guson onward, Storey concluded, the been Storey’s most persuasive argument separate-but-equal doctrine had no releas far as the Court was concerned, but for vance in a case of such obvious statutory

him there were more important reasons discrimination. Nor, as the city’s reprefor arguing the case. Nowhere else in a sentatives claimed, could the ordinance court of law was Storey’s passionate be regarded as a legitimate exercise of the dedication to civil equality so apparent. — police power. Such power could operate The law ostensibly was passed to cur- only against the ‘‘injurious consequences tail “‘ill-feeling. between the races,” but of individuals,’ not against classes. The

Storey ridiculed the idea that an alley Negro was the victim, not the instigator,

could serve as an effective barrier | of social disorder; just because white

between racially different blocks; and he men ‘‘do not like him as a neighbor, they then went on to challenge the whole pre- —s pass an ordinance depriving him of his

sumption of “race purity.”’ The defen- right to live where he pleases, and they dant’s counsel talked of ‘“‘racial barriers justify it on the ground that it is neceswhich Providence and not human law sary to protect them from being tempted

has erected.”’ Storey argued, ‘‘Had Provi- to assault him if he exercises that right.’’®¢

dence in fact erected such a barrier it In his argument Storey compared

would have been impassable and no Negroes with employers, who were also human law would have been needed. It is victims, as he saw it, of an organized because no such divine barrier exists that assault upon their rights as property

they seek to establish one by human leg- owners. Such analogies reflected his own islation.’’®? The ordinance discriminated view, but no doubt also pleased a conseragainst ‘‘the better class of Negroes’’ who vative Court. Indeed, some commentators

wished to move out of the ghetto, and have argued that it was solicitude for

this discrimination, he claimed, was the property rights, and not for the victims of purpose of the ordinance. ‘‘No one out- discrimination, that motivated the Court side a courtroom would imagine for an to rule for Storey’s client.®7 It is true that

instant that the predominant purpose of the decision made no mention of the this ordinance was not to prevent the aspirations of Negroes. Significantly, Negro citizens of Louisville—however however, the Court did impose limitaindustrious, thrifty, and well-educated tions upon the ‘“‘separate-but-equal’’ doc-

they might be—from approaching that trine and the sociological assumptions

341

, Moorfield Storey and the Struggle for Equality behind it: ‘““That there exists a serious the NAACP entered came from the

and difficult problem arising from a feel- Supreme Court of the District of Colum-

ing of race hostility which the law is bia. One party to a covenant, John J. powerless to control, and to which it Buckley, had successfully sought an must give a measure of consideration, injunction against another, Irene H. Cormay be freely admitted. But its solution rigan, to prevent the sale of property to a cannot be promoted by depriving citizens Negro, Helen Curtis. Louis Marshall

of their constitutional rights privi- argued the case on appeal before the

leges.’’®8 There were situations in which, United States Supreme Court, but Storey

under the Plessy precedent, it would played a major role in preparing the brief. uphold segregation legislation, the Court To a greater extent than the previous continued, and it would not permit such briefs the NAACP had prepared for the legislation to restrict the right to buy and Supreme Court, that of Marshall and sell property, secured under the “‘privi- Storey in this case attempted to counter leges-and-immunities”’ clause. By limit- in advance any questions the Court might ing real-estate transactions to persons of raise. Their first point was that enforcethe same race, the Louisville ordinance— ment of the covenant by the lower court and all other such ordinances—restricted deprived Corrigan of the right to dispose — that right and thus were unconstitutional. of her property without the ‘‘due process

Storey, who had been worried before of law” guaranteed by the Fifth Amend-

he argued the case (‘You know how ment. Partly because both men hoped

ingenious the Court sometimes is in find- that a favorable ruling from the Court ing a method of avoiding a disagreeable would void all such covenants throughquestion’’®’), was overjoyed with the out the United States, and partly because

decision. “I cannot help thinking,” he Storey at least believed that the Four-

wrote Villard, “it is the most important teenth Amendment extended to all terridecision that has been made since the tory under American jurisdiction,” their Dred Scott Case, and happily this time it brief also contended that judicial enforce-

is the right way.’’7° ment of those covenants violated the

As Negroes began moving in large Fourteenth Amendment as well. Yet, as numbers to the North during and after far as the Court was concerned, the Four_ World War I, new devices were found to teenth Amendment, even more than the

keep them segregated. The most promi- Fifth, applied only to cases of “‘state nent was the restrictive convenant, a con- action.”” What if the Court dismissed the

tractual agreement among property case on the ground that the covenant owners not to sell to Negroes for a speci- —_constituted private discrimination?

fied number of years; the courts would To counter this contingency, Marshall enforce the agreements. California and and Storey decided to argue that the covMichigan courts declared the future enant went against “public policy.’’7”5

restriction void, but concurred with other “Public policy,’’ as Marshall had written state courts on the validity of restrictions to Storey, “‘is largely based upon constiagainst current purchase or occupancy.”! tutional and statutory definitions as to Storey denied the validity of the restric- what the policy of a State is’’’?©—in this

tions and cited the Buchanan ruling that case, the common law prohibitions on the “attempt to prevent the alienation of contracts in restraint of the alienation of the property in question to a person of property, statutory prohibitions on concolor was not a legitimate exercise of the tracts in restraint of trade, and, most of police power of the State.’’?? He argued all, the implications of the Court’s decithat ‘‘if public policy does not justify the sion in Buchanan v. Warley. There the state in making this restriction, neither Court had prohibited municipal governdoes it justify the restriction when ments from segregating residential areas. imposed by a private citizen.’’”3 The case Since ‘“‘there can be no permissible dis-

342

William B. Hixson, Jr.

tinction between citizens based on race, __ its ruling to the District of Columbia.*!

, creed, or color if we are to remain a har- “Those who would hold the Negroes

monious nation,’’’”? the Court could not down, who would deprive them of their now permit such segregation to be fur- rights, now understand that any attempt thered through judicially enforced pri- of that sort is going to be met by proceed-

vate agreements. ings in the courts backed by an adequate As Marshall and Storey had foreseen, | organization,’’ Storey wrote prophetically

the Court could find no case of “state in 1926, “‘and in the courts our rights are action’’ presented. But it also refused to safer than anywhere else in this great consider their “public policy” argument country.’’8* The NAACP’s success in and, in a somewhat opaque decision, dis- achieving the total destruction of the missed the case for want of jurisdiction.78 legal embodiment of “‘white supremacy”’

Storey was ‘not surprised at the deci- | was launched with the victories won by

sion,’ and wrote; “I deplore it bitterly for | Storey. It has been said that the founding

the same rules will be tried not only of the National Association for the

against colored people but against every- | Advancement of Colored People reprebody who by social position, nationality, | sented a “new abolitionism,” a second religion, or perhaps politics is objected to commitment of some white Americans to by their neighbors.’’?9 This, the only fight for the freedom of their black counmajor case lost by the NAACP in Storey’s trymen. In the case of Storey’s advocacy

lifetime, was only a temporary defeat. on behalf of the NAACP, it would be Twenty years later, the Supreme Court more accurate to say that it represented decided that the judicial enforcement of | the culmination of the original abolitionrestrictive covenants was indeed ‘‘state ist commitment—that of Charles Sumner action” and therefore unconstitutional.8° and his idea of ‘equality before the law.”’ In a companion case, the Court extended

S. Sidney Ulmer

Ear] Warren and the Brown Decision |

If asked to name the most important The phenomenon of unanimity in

decision made by the Supreme Court dur- Brown has elicited considerable speculaing the chief justiceship of Earl Warren, tion. One observer has written:

the layman could be excused if he , ,

answered quickly: the decision about Conceivably, we will some day know how

segregation in the Brown case. For it is unanimity was reached. What was the role of that vecision thal marked the new chiet the Chief Justice’s predecessor? Was it nec-

Justice In as a major force in the essary to woo and win those members of the dociston that weve the Panay itisan tatwere Court How thewith linesSouthern drawn inbackgrounds? December of 1953, tenor ane a tone that was to character'Ze it when the cases were argued for a second

t he ar warren § nee When War- time? Are the speculations correct which

ren himsell was asked the same question credit the newly arrived Chief Justice with

Ed nan he Selecteer own V. vor d of the unanimous statement? Was the opinion ucation” as one of the «wo most lmpor- in the cases shaped by adamant refusals to

: - utilized?>

tt behind Baker v_ Con? i eee sonatt concur unless this or that approach was

cance. It seems unquestionable, however,

that the personal influence of the chief A t h fi Id. of justice was more readily felt in the Brown se a0 f 0. hel dues ‘ete womes 0

case, in which he wrote the ‘‘opinion of vectly ike ar tribu ha NE re 1 Ware y to

the Court,” than in the reapportionment. the ‘ © Contr the Se ar ti ” Cas °

case, in which the opinion was written by Until vow hh i the Jack of fon iat " _ Justice Brennan. For Warren’s opinion in dat , hed % hibited the ae ction ron The Brown received unanimous support, a feat ata i MALONE f the Harold HB t C that most students of the Court would Paper oresente OF me hanit t tte non have thought unlikely, if not impossible, apers presents an opportunity fo attemp t

at the time , a fuller and morehas complete evaluation of , oo | Warren’s role than heretofore been Reprinted from Journal of Politics, 33 (1971), 690- possible.* That is the purpose of this short

| 343

702, by permission. paper.°

344

S. Sidney Ulmer

The background for the decision in The views of the other justices at that Brown was laid by the Vinson Court, point appear to have been as follows: : probable jurisdiction being noted on June favoring or leaning toward reversal— 9, 1952.6 On October 8th, it was decided Black, Douglas, Burton, and Minton; to continue the cases so that they could be favoring or leaning toward affirmance—

heard with the developing District of Vinson, Reed, Frankfurter, Jackson, and Columbia case.” This could have been a Clark. Had this situation been inherited play for time, for the distinction between by Warren in October 1953,1!° it seems the applicable Fourteenth and Fifth quite unlikely that the Court could have Amendments was such as to complicate reached a decision to reverse, much less a the finding of common ground forthe fed-. ~~ decision unanimously taken.

eral and state cases. Or strategical consid- Although reargument was scheduled erations may have been involved. Some initially for October, it did not occur until justices may have reasoned that a decision two months later. A conference was held

to ban segregation in the ‘federal city” on December 12 with Warren presiding would increase the pressure to bar it in and, as chief justice, required to speak the states. In any event, by so structuring first. Knowing, as he undoubtedly did, the

the situation, the Court underscored its disparate views prevailing on his Court, concern with public school segregation as knowing the views of his predecessor, a social rather than a legal problem. After and lacking prior experience on the initial arguments, the Court, on June 8, bench, Warren might have been expected 1953, redocketed the cases and scheduled to proceed with caution. His statement,

reargument for October 12. however, did not reflect such constraints.

All the above decisions were made by Remarking on the high quality of the

the Vinson Court, and they suggest that, arguments presented several days earlier, in this period, the justices were finding a he quickly stated that the Court could not

solution difficult. Just how difficult is evade the issue but must decide whether

reflected in the report of the conference segregation was allowable in the public held on December 13, 1952,8 i.e., in the schools. While he was concerned about interim between oral argument and the the possible necessity of overruling earredocketing of the cases. Speaking first in lier cases and lines of reasoning, he conthe conference, Vinson observed that pub- cluded that such segregation must now be

lic schools in the District of Columbia prohibited. For in his view the only basis were segregated in 1868 when the Four- for segregation and separate but equal teenth Amendment was adopted. More- rights was the inherent inferiority of the over, the Congress sitting at that time colored race. This, he thought, was the declined to pass a statute barring racial theory of Plessy and would have to be the

segregation in District schools. Though he theory of the present Court if segregation voiced no disagreement with Harlan’s dis- was to be approved. sent in Plessy v. Ferguson,? he argued that - Warren could not understand how, in Harlan was careful to avoid a reference to that day and age, one group could be set ©

public schools. This, he thought, was apart on the basis of race and denied highly significant since the opinion other- rights given to others. To do so, he wise bore down so heavily on racial segre- argued, violated the Thirteenth, Four-

gation. With regard to the role of the teenth, and Fifteenth Amendments —

Court, Vinson expressed the view that if amendments clearly designed to make Congress failed to act, the Court would slaves equal with all others. On a personal have to confront the problem and would level, he could not fathom how — ‘“‘today”’

need wisdom to deal with it. He is — segregation could be justified solely on

recorded by Burton as probably uphold- the basis of race. In discussing a possible ing the validity of segregation atthattime. | remedy, he thought it important to avoid

345

Earl Warren and the Brown Decision

precipitous acts that would inflame the that legal reference, his opening comment situation more than necessary. Conditions was not laden with ‘“‘law language’”’ or fre-

in the different states would have to be quent reference to ‘‘constitutional require-

recognized. Kansas and Delaware with ments.”’ Instead he sought to deny the their Negro populations he considered lit- inferiority of Negroes, to suggest that such tle different from California with its Mexi- anachronistic practices as segregation had can and Japanese populations. In the Deep no place in the modern day, and to follow

South, however, he believed it would his instincts and feelings in banning it. require all the wisdom at the command of Clearly, we see here a man who had the Court to abolish segregation with min- enlarged his horizons from the day when,

imal upheaval and strife. He particularly as governor of California, he had been a stressed that how segregation was abo- leading proponent of Japanese exclusion lished was important. In summing up he from the West Coast [during World War is recorded by Burton as stating that his IT].

‘instincts and feelings would lead [him] , gs to say that in these cases [we] should abol- Ware reactions of the oer bee ves i ish in aws tolerant way the practices of atrens views were mixed. ree 0 ; > them were of southern background segregation in public schools. Ithouch onl Black f

Upon reflection Warren’s opening state- 5 ous he y one, d “of ; stuck andi. ment was a masterly one. It condemned ‘ted Sout ate. nee » 0 rr tuc y, mer

no one; it was unemotional; it recognized oar - . th t he ae arren § d ara

differences among the states and in condi- ik © an h a te ( eth ) Constitt ik He tions relevant to the problem; it suggested ceded h, it the OF te wonsh of Plc ° tolerance in disposing of the matter; it conceded that the Constitution ON ey

referred humbly to the need for wisdom. might not be the Constitution of today and

Thus it projected a reasonable and con- pat equal protection, as defined by cerned man with malice toward none — a ee? had resulted in neither equal facil-

judge faced with a case to decide what- Re ne equal ear tor Negroes.

ever the impediments. At the same time esponding directly to Warren, however, one must be struck by the firmness with Reed observed that the argument was not which Warren asserted at the outset that made before the Court that the Negro was he was prepared and that the Court was an inferior TaGe, ad ding that, of course,

obliged to bar consciously segregated there was no inferior race. Though War-

public schools. Given the uncertainties ren €xP ressed no concern about the "Reed

with which some of the other justices mS of the Civil War amendments, Ree were plagued at this time, strong leader- reminded his colleague that segregated ship on the question was undoubtedly a schools had not been barred by the Conkey factor in the ultimate solution. gress that framed t he amendments. With _ By taking the unambiguous position regard to the legality of segregation, Reed

that segregation by race could only be jus- argued that it was not a denial of liberty to

tified by a belief in the inherent inferiority say that people must go to separate of the Negro, Warren forced those in schools. It was merely the exercise of a opposition to subscribe to a questionable police power. theory or show that such a theory was not A second Southerner was absent from a fundamental support for the practice. © this conference. Hugo Black, Burton Finally, it may be noted that Warren recorded, had departed for Alabama and made no reference to the inconclusive his- Florida on December 10. Black’s sister-in- —

tory of, or the intentions behind, the Four- law was near death in Birmingham."!

teenth or other amendments. Indeed, he Thus Black could not have been

asserted that all three of the Civil War influenced one way or the other by Waramendments were violated. But beyond ren’s opening efforts to eliminate public

346

S. Sidney Ulmer

school segregation from the national The last two justices recorded by Bur-

scene. , ton, Frankfurter and Jackson, provided The member from Texas, Tom Clark, some contrast in their responses to the

was present and ready to grapple with the new chief justice. Quoting Cardozo to the question. Pointing out that he was closer effect that the Court’s work is partly statto the problem, having lived with it, than utory interpretation and partly politics,

any other justice except Black, Clark Jackson asserted that the Segregation

stressed the seriousness of the issues Cases required a political decision. This, involved. He acknowledged that in some he said, was no problem for him, but he Mississippi and Alabama counties, the did not know how to justify the abolition Negro population was as much as 60 per- of segregation on judicial grounds. The cent of the total. He noted South Carolina problem for him was how to create a Governor Jimmy Byrnes’s threat to abolish judicial basis for a political conclusion.

public schools. But while opposed to He indicated that he could support a

relief by fiat, Clark was willing to pursue a political decision, but he may have

flexible approach. He was surprised at the threatened to label the decision as such.

legislative history of the Fourteenth Suggesting that he had no particular loyAmendment. He had always thought the alty to southern schools, Jackson preamendment banned segregation by race, dicted that trouble would occur when

but he saw now that Congress had not white children were sent to colored ignored the question—that it had recog- schools and colored teachers.

nized segregated schools—and that the Frankfurter’s position at this point was legislative history could not be used. Nev- typically philosophical. He began by ertheless, he was willing to support War- deploring the fact that the Court was the ren if relief were carefully worked out guardian of the due-process clause. Other with variations to fit different situations. nations (India, Australia, Ireland), he Thus, the two “southern’”’ justices present observed, had not burdened their high at this conference appear to have had courts with this function. Like Reed and

opposite preferences at this stage of the others, Frankfurter doubted that the

proceedings. legislative history of the amendments The remaining justices on the Court suggested the unconstitutional status of also expressed divergent views. Minton ‘school segregation. To eliminate it

and Douglas were clearly in agreement would, he thought, require some psycho-

with Warren, thus maintaining the posi- logical adjustments. In any event, he

tions they had taken in the earlier confer- advised against a self-righteous attitude ence in the Vinson Court. Minton could on the part of the Court. simply imagine no valid distinction based Regarding Burton’s position, some ini-

on race or color. He was in favor of out- tial ambiguity exists. Burton did not

lawing public school segregation on both record his own remarks in the conference

equal-protection and due-process dealing with segregation. His diary likegrounds and was inclined to let the dis- wise reveals nothing of what he may

trict courts have their heads in the matter. have said in the conferences. Yet, we Douglas shared Warren’s views concern- _ know that he was heavily involved in the

ing the states, though he believed that the intra-Court interactions that preceded legislative history shed a mixed light on and followed the Segregation Cases and the intention of the “framers.” His posi- the decisions in them. Burton records tion was essentially that discrimination that conversations on these cases with by race or color could no longer be sanc- one or more justices occurred on a tioned. With regard to the District of number of occasions between December Columbia case, he favored sending it back 1952 and June 1955. The most frequently

to the Court of Appeals to determine mentioned justices were Frankfurter and whether segregation in the District was Warren. On April 20, 1954, for example,

mandatory or permissive. | Burton wrote, ‘After lunch the Chief Jus-

347

Ear] Warren and the Brown Decision

tice and [I] took a walk around the Capi- made by Burton on December 17, 1953: tol, then went to his chambers where he ‘After lunch the Chief Justice told me of

[one word illegible] his preliminary his plan to try [and] direct discussion of

thoughts as to [one word illegible] Segre- segregation cases toward the decree — as gation Cases.’’!2 Conversations with War- probably was the best chance of unanim-

ren were also recorded throughout May. ity in that phase.’’!© This information In these conversations Burton indicated a serves two purposes. It tells us definitely high level of agreement with the way in that the conference held on December 12 which Warren was handling the cases. It had failed to produce the unanimity that may be inferred that Burton’s position Warren clearly sought. Beyond that it was never far from that of Warren. Cer- reveals poor judgment on Warren’s part tainly Burton was not among those jus- since the subsequent processes by which tices to whom Warren had to “‘sell a bill a decree was produced proved to be

of goods.” much more complicated and difficult than the processes leading to the initial

When Warren opened the conference decision. That this mistake was soon

reported above, he suggested that discus- recognized is reflected in the May 1954

sion be informal and that no vote be decision, which was not a decree but a taken. Thus no formal vote was cast. Yet, highly general opinion and decision if one had to speculate about the outcome which did, indeed, have unanimous of a vote at that time, it seems likely that support.?!7

Warren would have had a majority with Was Warren responsible for the una: him. Added to his vote would have been nimity that eventually prevailed in the those of Minton, Douglas, and Black Segregation Cases? Reaching complete (consistent with their earlier positions). agreement in the Court on so volatile a He could also have counted on Burton social issue, as opposed to a divided and Clark. On the other hand, Jackson Court with the Chief Justice in dissent, and Reed appear to have been two “‘no”’ seems to have been important to Warren. votes while Frankfurter was negative at He not only worked to achieve unanimity least regarding the state cases.1* Thus it on the vote but also wanted his opinion appears that Warren began his tenure on in the cases to have the support of all the _ the Court with a 6-3 majority in favor of justices. To obtain the latter, he offered barring public school segregation in the an appealing format in a memorandum

states. sent to his brethren on May 7, 1954. The In his diary Harold Burton records the opinion, he wrote, should be short, non-

view that, in May 1953, six members of rhetorical, unemotional and, above all,

the Court were in favor of and three were nonaccusatory. !8

opposed to outlawing segregation — with That the Court finally stood as one in Chief Justice Vinson in dissent. Accord- the Segregation Cases is attributed by ing to Burton a major reason for postpon- Burton to the chief justice. In his diary

ing a decision was the hope of getting a for May 8, 1954, Burton records: “In AM better result later.‘4 In any event, Bur- the Chief Justice brought his draft of his

ton’s comment suggest that either Frank- segregation cases memoranda. They were furter, Reed, or Jackson was a member of in accord with our conversations. In PM I

the majority in May 1953 and implies read them and wrote him my enthusiastic that a 7-2 lineup existed in December approval — with a few minor suggestions.

1953. 15 He had done, I believe, a magnificent job

It does not appear from the evidence that may win a unanimous court.”’!9 And available that Warren made any converts on May 12, he writes: ‘“The Chief Justice

to his position between coming to the also read to me his latest revision (slight) Court in October and the conclusion of of his drafts in the Segregation cases. It the December 12 conference. This infer- looks like a unanimous opinion. A major ence is buttressed further by a diary entry accomplishment for his leadership.’’?°

348

S. Sidney Ulmer | | Producing a unanimous opinion was ing me — handed back the circulated indeed a major accomplishment. For only prints to the C.J. to avoid possible

five days before the opinion was to be leaks.”25

handed down, Burton was still uncertain Managing the timing of news releases whether there would be unanimous back- is nothing new in government, but the

ing for it. The holdouts or doubtful measures taken here were unusual. It

- members appear to have been Frankfurter seems that the Court placed great imporand Jackson, or one of them. It seems not tance on being the first to announce its

to have been Justice Reed, who lunched own judgment. These maneuvers also with Warren and Burton on that very hint that leaks from the Court prior to a day. Reed is also recorded as having formal announcement of case results are lunch with Burton and Warren at least more common that one might suspect.

twenty times between the initial confer- Since Burton’s recording of these ence and May 8, including several days arrangements suggests that they were

in April and early May. While this group rare, we have evidence that the Court was was frequently joined by Clark and Min- particularly sensitive to the subject mat-

ton, and less frequently by Black and ter of the cases and the social implica-

Douglas, it was never joined by Frank- tions of the decisions in them.Ӣ furter and Jackson. The inference is that , Burton was probably more familiar with What answers can now be given to the

Reed’s thinking on the question at that questions quoted at the beginning of this

time than with that of: Frankfurter or article? Clearly, when Warren came to

Jackson. Comments made by these jus- the Court, a majority of the justices were tices in conference are also consistent already in favor of holding public school with such an interpretation. Subsequent segregation unconstitutional. Though we

to the Brown decision, Frankfurter is on can credit him with refraining from record as saying that “‘it is not fair to say action that might have lost him that that the South has always denied the majority, we cannot conclude that WarNegroes this Constitutional right. It was ren was responsible for it. At the same

not a constitutional right till May time, there were strong views in the 17/54.”*1 Taking together all the evidence Court as to how the decision should be

on Frankfurter, it seems likely that he formulated and carried out. Warren’s

was in doubt on the state cases until the low-key approach emphasizing fairness,

last possible moment. | understanding, and tolerance, combined After maximizing support for his opin- with a strong plea for justice, clearly con-

ion, Warren considered it necessary to tributed to keeping the question on a

engage in a kind of administrative man- mature level of discussion and to muting agement that is undoubtedly rare in the the differences (minor and major) among

Court. It appears that he and other jus- the justices.

tices were concerned lest there be Wooing the southern justices does not “leaks”? about the upcoming decision. appear to have been necessary, at least as Thus steps were taken to assure that the regards Black and Clark. It probably did matter would remain private until deci- occur in Reed’s case. The southern backsion day. Warren personally circulated grounds of first Vinson and, later, Reed,

his final draft opinion among the jus- Black, and Clark were not, however, tices.?? Burton tells us that on May 15, in immaterial for the decision in the Segre-

conference, the opinions were “finally gation Cases and were of particular approved.’’?3 But, then, ‘“‘no previous importance in the formulation of the

notice was given to [the] office staff, etc. 1955 decrees. Each southern justice was

so as to avoid leaks.”24 To avoid suspi- not only aware of his southern backcion of leaks by the justices themselves, ground, but referred to it in conference.

Burton writes that ‘‘most of us — includ- Indeed, having a southern background

349

Earl Warren and the Brown Decision

provided a justice with the aura of an in the Segregation Cases and the decrees “expert” who had lived with the prob- that followed have not adequately appre| lem, knew its magnitude, and understood ciated the more subtle influences exerted the attitudes and ingrained habits of by those justices on the actions taken. southern whites — an expert who could The unanimous opinion in the case foresee the consequences of proceeding must, of course, be attributed to Warren. ,

in alternative ways. Though he was reported as saying in

Deference to the ‘‘southern justice’”’ 1968, ‘‘Well, gee, the Chief Justice familiar with the ‘Negro problem”’ is doesn’t write all of the important decireflected in Frankfurter’s apologetic com- sions,’’°° he did assign the Segregation ment that he had never lived closely with Cases to himself and worked for unanimNegroes but had gained some insight into ity from the start. Since we know he did

the matter while serving as assistant not inherit a unanimous Court, it is prob-

counsel to the NAACP. He alsc thought it ably correct to credit him with achieving pertinent to remark that he was a member the full agreement that ultimately preof the Jewish community.27 Presumably vailed. There is no hard and fast rule by this gave him some understanding of the © which we can evaluate the significance

treatment of minorities in the United of unanimity in these cases, though one States. In any event, it is clear that the supposes that the unanimity of the Court background of a justice was not thought enhanced the acceptability of the decito be beyond the pale of judicial notice. sion. Had there been dissents, it is possi-

Robert H. Jackson admitted with ble that dissidents in the concerned

embarrassment that he had never really public might have rallied around the disbeen conscious of the racial issue until senters. But that is mere speculation, for he came to Washington. There he discov- no appropriate historical evidence is ered that white lawyers, Catholic and available from earlier cases, and certainly Jewish, discriminated against Negroes.?& none is available from this decision, for Even Reed, from Kentucky, was moved to there were no dissents.

state that he did not know the Deep The influence of the other justices on South — thereby suggesting that a knowl- the segregation decisions was substanedge of the Deep South was relevant to a tial. Undoubtedly the views of the Court

decision in the case and that Black and accounted for the gradualism of the Clark (particularly Black) were better social change required and served to informed and qualified to speak than temper any tendencies toward precipi-

those without such a background.?? Nei- tous action that might have been present

ther Black nor Clark hesitated to draw in the Court. All of the justices were

upon his background and familiarity aware of the limitations on their ability to

with racial matters in Alabama and effect major social change quickly, and

Texas. Thus, on balance, it seems likely they reflected that belief in their words that the treatment of segregated public and actions. It is in circumstances like schools would have been harsher, in the these that the possible value of having sense of more immediate and demanding former political leaders on the Court can remedies, had the Court been deprived of be appreciated. For political experience southern representation at this stage. tempers the impulse to choose extreme

Southern critics who have been upset options.

with the southern justices for their roles |

BLANK PAGE

| Part Eleven

The Bar and the New Jurisprudence

In the United States the practice of law interest in legal theory and legal philosorequires formal training and admission to phy. But one intellectual movement — the bar. At present there are more than legal realism — did flourish in the 1920s 400,000 practitioners, — far more in pro- and the 1930s, evoking considerable portion to population than in any other interest both here and abroad, and it still country. Lawyers in America are influen- influences scholarship. (It may also affect tial and ubiquitous: active in business, the behavior of lawyers and judges, but prominent in politics, and, despite their this is much harder to measure.) Edward reputation for conservatism, in the fore- Purcell’s study of legal realism emphafront of reform (consider, for example, sizes its background in ethical relativism Ralph Nader and the ‘public interest’’ and in the exaltation of natural science. lawyers). American legal and constitu- The realists were skeptical about legal tional history cannot be fully understood logic. The clear, precise surfaces of law without some consideration of the role of and the gapless network of rules, they felt, the lawyer. Jerold Auerbach’s essay exam- concealed the reality that judges were in ines the career of two very prominent law- fact making law on a case-by-case basis.

yers, one a Democrat and one a The realists wanted to be candid and open Republican, and concludes that, despite about the judge’s power, hoping in this differences in their political and personal way to harness it on behalf of the public leanings, they both served essentially the interest. same master — big business. There was a Ironically, though the realists were

liberal branch of the profession before the almost invariably liberals, they were vulNew Deal as afterwards but the dominant nerable to the charge that their philosovoice of the bar defended the prevailing phy ignored justice and the rights of man,

economic order. delivering the citizen to the tender mer-

Before the twentieth century, despite cies of the all-powerful state. This was a the work of a few “giants” such as Kent potent criticism, especially in the growand Story, there was hardly anything in ing shadow of Hitler in the 1930s. Under

American legal thought worthy of the pressure from a powerful and varied name, and, compared to continental group of critics, the realists backed off

| 351

Europe, academic lawyers still show little somewhat, trying to reconcile their view

352

The Bar and the New Jurisprudence

of the judges’ role in fact with their view Johnstone, Quintin, and Dan Hopson, Jr.

of a good and just society. Lawyers and Their Work: An Analysis of the

Legal Profession in the United States and

Further Reading England. Indianapolis: Bobbs-Merrill & Co., Auerbach, Jerold S. Unequal Justice, Law- Rumble, Wilfred E. American Legal Realyers and Social change in Modern America. ism: Skepticism, Reform, and the Judicial New York: Oxford University Press, 1976. Process. Ithaca: Cornell University Press,

Grossman, Joel B. Lawyers and Judges: 1968.

The ABA and the Politics of Judicial Selec- Todd, A. L. Justice on Trial: The Case of tion. New York: John Wiley &Sons,1965. =~ Louis D. Brandeis. Chicago: University of Harbaugh, William H. Lawyer’s Lawyer: Chicago Press, 1964. The Life of John W. Davis. New York: Oxford University Press, 1973.

Jerold S. Auerbach | Lawyers and Clients in the Twentieth Century |

Toward the end of the nineteenth century formal training; from advocacy to counwhen Charles Evans Hughes and John W. seling; from the disruptive fluidity of the Davis decided to practice law, the Ameri- late nineteenth century to the uncertain can legal profession had begun to experi- stability of the early twentieth century. !

ence the growing pains of modernization. Hughes and Davis ascended to emiEspecially at the metropolitan bar, tradi- nence within the new professional cultional folkways were unsuited to the ture. No professional honor and barely a changing demographic patterns, accel- high public office escaped their grasp. erating pace, and shifting values of an Hughes was governor of New York, assourban industrial society. Bar associations ciate justice of the Supreme Court, secreexpressed an impulse toward professional tary of state, and chief justice of the cohesion. Bar admission standards were United States. Davis was a congressman tightened, and ethical norms were prom- from West Virginia, solicitor general, and ulgated to define and deter deviance. Uni- ambassador to England. They were presi-

versity legal education, especially the dents of the American Bar Association a case method, elevated academic excel- year apart and, had a Republican been lence above practical experience and elected in 1916 and a Democrat in 1924, encouraged the professionalization of law Davis might have followed Hughes to the teaching. Systematized recruitment pat- White House. No chief justice after Marterns channeled the talent flow to new shall did more than Hughes to preserve corporate firms, which provided compre- the Supreme Court from attack upon its hensive services to a restricted clientele. institutional power. No advocate after Within a generation a sprawling, strati- Webster argued more cases than Davis fied profession pulled away from the old before the Court or won more glowing moorings, its transformation in structure plaudits from its members. Hughes and and values complete: from individualism Davis were the consummate statesmen of to organization; from apprenticeship to the legal profession in the first half of this

| century. Not only did the appellation

Reprinted with changes, from the Harvard Law “lawyer’s lawyer’? describe them; their Review, 87 (1974), 1100-11, by permission. Copy- personal and professional attributes virright, 1974, by the Harvard Law Review Association. tually defined the accolade. |

353 -

354

Jerold S. Auerbach

Hughes, the son of an upstate New York to learn what law was, not speculate about

minister, was a precocious child and a what it ought to be. Davis was a good stuvoracious student who was driven relent- dent. Orthodoxy did not impede suclessly by his parents to excel. Equipped cess in Clarksburg, especially for the son with a formidable intelligence, a law of an established lawyer. Davis & Davis degree from Columbia, and letters of rec- was not Carter, Hughes & Cravath but, as

ommendation from his father’s well- the elder Davis reminded his neophyte

placed friends, he entered the law office partner, no young attorney in West Virof Walter S. Carter, the architect of the ginia enjoyed more opportunities at the modern law firm who institutionalized its outset of practice. The father’s clientele

symbiotic relationship with university provided initial security; the surging

law schools and business corporations. prosperity of local railroads and mining “These highly privileged firms,’ Hughes | companies offered subsequent opporturecalled, ‘‘seemed to hold in an enduring nity. Young Davis was blunt about his grasp the best professional opportunities ends. He conceded that he was ‘after

and to leave little room for young every dollar in sight’ that he would ‘“‘do aspirants outside the favored groups.”’ any amount of work on the chance of ,

Hughes was an insider who capitalized on gaining prestige by it.’ The strain of his opportunities: within five years he working and earning showed. Once he hit and Paul D. Cravath (whom Hughes had an attorney in court; another time he anet at Columbia) were Carter’s partners, threw an inkwell. and Hughes became Carter’s son-in-law. By 1910, when Hughes was appointed Two decades in practice, interrupted by a to the Supreme Court, Davis had reached

brief hiatus on the Cornell law faculty, the pinnacle of the West Virginia bar. A , preceded his meteoric rise in public life reluctant candidate for the House of Repafter he served as counsel to the New York resentatives, he quickly won distinction

gas and insurance investigations. To in Washington as the ablest lawyer in

Hughes, the lessons of his career were Congress and as an outstanding solicitor

self-evident: “If the young lawyer sees to general. When he relinquished his ambas-

it that his work is of the best and if by sadorship in 1921 he was certified by his intelligence and industry he stands well government experience for the profesin his own generation, he can afford to sional elite. As Hughes left Wall Street for await his share of the privileges and Washington, Davis arrived on Wall Street responsibilities which to that generation from Washington. Their careers, converg-

are bound to come.” ing at the apex of professional life, Davis followed a more circuitous path demonstrated that success was possible to Wall Street. He lacked Hughes’s intel- | for educated white Anglo-Saxon Proteslect; Mrs. Davis observed knowingly that | tant sons of professional fathers whose her son was not brilliant, but he would —_— Positions provided a boost on the mobility

work as hard as anyone. Washington and _ladder.° , Lee, where Davis attended college and But Hughes and Davis paid for their

law school, was a parochial institution success in ways that neither their society that reinforced his orthodoxies. From his nor their profession prepared them to father, a prominent Clarksburg attorney, comprehend. Hughes, from the age of six Davis had learned to misread Jefferson in | when he composed a ‘Plan of Study,” support of natural law, constitutional fun- was so driven by the compulsion to damentalism, and states’ rights. College work, and to ascribe his work to the dictefined his ability to reason from fixed _ tates of duty, that his professional and principles and to deport himself as a gen- public life were constant sources of psytleman. His legal education was no less chic distress. Law school exhausted him; - conventional. His teachers, he reminisced practice left him ‘‘nervously depressed

without criticism, wanted their students because of the steady grind.’’ He

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Lawyers and Clients in the Twentieth Century

accepted the professorship at Cornell Justice Taft to complain: “If you people with expectations of surcease. But Cor- in New York were not so eager for

nell also was a “‘hive of industry,’’ where money... you might have some repreHughes remained ensnared in ‘constant sentatives on our bench.” Davis suffered toil”. Regaining his ‘‘nervous poise,” he severe reversals after the 1929 crash: his returned to practice and to periodic ‘‘fits average annual income declined from of depression.” Much of his professional $400,000 to $275,000 and rising taxes

life, he conceded, was ‘‘unrequited made it a struggle to maintain his Long

drudgery.’ Public service was also pri- Island estate and his Fifth Avenue apartvate torment. During the life insurance ment (each with its staff of six). Too investigation he felt ‘‘worn out and much was never enough, as Davis probautterly depressed”; as governor he was bly sensed when he conceded: “I feel “nervously worn”; when he joined the even poorer perhaps than I am.”’

Court he felt ‘‘tired out.” Back in prac- At critical junctures in their careers tice, he ‘‘almost suffered a breakdown.” —_— public accountability was demanded of

Only duty (he claimed) enabled him to Davis and Hughes for their personal and accept the gubernatorial nomination and professional choices. As Davis edged the Supreme Court appointment. He told closer to the presidential nomination in President Taft that he could “withstand 1924, the Morgan retainer, his major ecoany personal inclination” to serve on the nomic asset, became a political liability. bench “if it were opposed to the obliga- Davis found refuge in the duty ‘‘to serve tions of public duty.” It ‘“‘reassured’’ those who call on him” without regard Hughes, upon reflection, to discover that for the implications of service for perhis duty to serve impelled him to accept sonal popularity or political reward. what mere desire (to say nothing of ambi- “Any lawyer who surrenders this inde-

- tion) never could. pendence or shades this duty... disparWhat Hughes did from the spur of ages and degrades the great profession to duty, Davis did for the love of money. which he should be proud to belong.”’

He, too, was frustrated by work that con- Six years later, when Hughes was nomisumed his energies and required strin- nated for Chief Justice, he was “most bitgent control over his emotions, yet left terly and unjustly attacked,” he claimed

him feeling ‘‘peevish & fretful.’’ (His in his Notes, for his corporate counselabsorption with work elicited the poi- ing. Hughes, like Davis, was distressed gnant lament from his daughter: ‘‘What I by ‘‘prejudice arising from a misconcep-

wanted from him was his time, and he tion of the character and effect of the had little to spare.’’) The harder he activities of a lawyer in active practice.” worked the more he earned; the more he Their indignation was misplaced. Critearned the more he craved. He spurned a ics did not question their right to choose

teaching offer for the ‘‘millions” he corporate practice for the ample financial wanted from practice. Asked to run for and professional rewards it assured; they Congress, he pleaded financial insecurity asked only that Davis and Hughes be

with an annual income (in 1910) of accountable for their choices. Both law$10,000 and $83,000 in investments. In yers evaded accountability by seeking search of ‘‘congenial partners and a refuge in professional duty, which was remunerative situation,’ he joined the sufficiently resilient to accommodate any Stetson firm (whose major client was J. P. demand upon it. But a lawyer who was — Morgan and Co.), although only recently obligated to serve well those who called he had described some results of Stet- was hardly compelled to engage in pracson’s craft as ‘“‘abnormal” and ‘‘immoral.”’ tice which virtually eliminated noncor-

He declined a feeler for the Supreme porate callers. It was sophistry for Davis Court because he wanted “some eco- to claim that he was asked to betray his nomic independence,” provoking Chief professional independence when, in fact,

356

JeroldS. Auerbach — _ he was being urged to demonstrate it. will rise to the responsibility of defendHughes, who casually dismissed any ing unpopular and beleaguered persons. inference that a lawyer might be judged Indeed, Hughes protested against the

by the clients he kept, cited Professor expulsion of duly elected Socialist Zechariah Chafee, Jr., approvingly for members of the New York legislature

declaring that Hughes had merely ful- during the red scare, and Davis carried filled his ‘‘duty to represent loyally the an appeal to the Supreme Court on behalf | client for whom he happened to be work- of a theologian who claimed that selec-

, ing.’’ But the question was not whether tive conscientious objection should not loyal representation was provided. It was disqualify him from citizenship. Yet whether the recipients of loyal represen- there lurks the suspicion that incidents

tation constituted a restricted, identifi- like these are celebrated less because able clientele whose interests shaped a they are typical than because they are lawyer’s practice, values, and politics, exceptional, despite Davis’s insistence and thus his qualification for public that it was the “supreme function” of

office. , oat lawyers to serve as ‘“‘sleepless sentinels

- Hughes and Davis were momentarily on the ramparts of human liberty and embarrassed by their professional iden- there to sound the alarm whenever an tity, but they were not impeded by it. enemy appears.”’ Hughes was confirmed; Davis remained In fact Davis slumbered on the ramthe acknowledged leader of the corporate parts of liberty, secure in the knowledge bar. But the accumulation of prestige and that federal power was the enemy, and dollars exposed the nagging predicament Liberty Leagues were necessary only of Davis’ career: he was a Jeffersonian when New Dealers regulated corporaindividualist whose corporate retainers, tions. Not that Davis was exceptional. William H. Harbaugh suggests, ‘‘imposed Twenty-three other lawyers also refused

subtle restraints on his freedom of to provide Communist Party leader Gus action.’”’ Unable to reconcile constitu- Hall with counsel, but no one ever tional fundamentalism with social accused them of devotion to professional change, he violated in practice every pre- ideals. cept of his Jeffersonian and professional Learned Hand was so enamored of the faith. He displayed a ‘‘consuming con- quality of Hughes’s character that ‘‘to

cern for the preservation of individual question the sincerity and purity of his liberties,’ but corporate counseling, Har- motives betrayed either that you had not

baugh concludes, ‘‘slowly forced him to understood what he was after, or that inure himself to the injustices wrought your own standards needed scrutiny.”

against individuals.’’ He defended states’ Hand also was so captivated by Davis’s rights, but, Harbaugh notes, ‘it was the “eloquence and charm”’ that he feared he national corporations on whose boards might disregard the merits of any case Davis sat... that set in motion the sub- that Davis argued. Davis (who belonged version of states’ rights.’”” He defended to an intimate dinner club with Learned strict constructionism and limited federal and Augustus Hand) was mindful of the power, but he demanded the broadest advantages bestowed. He once said of the construction of treason and the war Second Circuit, on which both Hands sat: powers during World War I. He claimed “Nobody can hurt me in this Court!’ Har-

that he would take any case that came baugh concludes that ‘‘tough-minded into his office, but when Gus Hall, a jurists had to fight off his seductive Communist convicted under the Smith charm.”’ Elegance, grace, style, charm — Act, approached him, Davis responded —= some elusive components of character —

that he was too busy. are the recurrent adjectives that lawyers It is an article of professional faith that used to describe Davis, in part, no doubt, when constitutional freedoms are in jeo- because he possessed these qualities and pardy bar leaders like Hughes and Davis in part, one suspects, from the desire to

357

, Lawyers and Clients in the Twentieth Century cover substance with manner. But Felix tion” and ‘‘dedication to the case at. Frankfurter, among others, knew the hand” were elevated to the highest state underside of “‘character’’: it was one of of professional grace. Craft required those “high-falutin’ expressions for per- skills: mastery of facts and knowledge of sonal likes and dislikes, or class, or color, law; reasoning acuity; and, as an advo-

or religious partialities or antipathies.’’4 cate, “the ability to simplify complex The Davis Polk firm, like other presti- matters with a few pithy Anglo-Saxon

gious Wall Street firms, institutionalized phrases devoid of adjectives and drained these qualities of character. Not coinci- of all emotion.” But craft also required a dentally, it also gained a reputation as particular definition of the lawyer’s role,

“the most socially exclusive office on which disguised volition and values Wall Street.’’ This achievement culmin- under the cloak of technical proficiency. ated a process within corporate firms that Davis was ‘‘just a law lawyer’’ (according

began back when Hughes and Cravath to his friend, Charles C. Burlingham, a joined Carter. Mass immigration and prominent New York attorney) who, Harurbanization threatened the dominant baugh writes, ‘‘adhered absolutely to the Anglo-Saxon culture. The fortunate few principle that the lawyer’s duty was to created sanctuaries for the preservation represent his client’s interest to the limit of their group power and status in east- of the law, not to moralize on the social ern schools, careers in business and and economic implications of the client’s financial bureaucracies, and corporate lawful actions.’’ As Davis reminisced: ‘It

law-firm partnerships.> Reserved for was my duty to find out what the law

those who possessed proper Anglo-Saxon was, and to tell my client what rule of

social credentials (character and ethni- life to follow. That was my job. If the city did not mix, as elite opposition to rules changed, well and good.’’ For

the Brandeis nomination in 1916 demon- Davis, the lawyer was merely a technistrated), the Wall Street firm was a cru- cian (“‘He does not create. All he does is cial link between corporate capitalism lubricate the wheels of society’) wearing and social elitism. White Anglo-Saxon a surgeon’s mask (‘‘The lawyer must steel

Protestants dominated the partnership himself... to think only of the subject roster, transforming it into an appendix before him & not of the pain his knife to the Social Register. Davis must have may cause’’). Such professional tunnel done more then “‘acquiesce”’ in this pat- vision was designed to obliterate those tern; his presence (including, doubt- disturbing substantive issues that Davis

lessly, his genteel racism and preferred to ignore: once the laws regu-

anti-Semitism), as Harbaugh notes, ‘‘was lating corporate activity changed in the felt everywhere within the firm.’ An 1930s, he found it neither well nor good; occasional Roman Catholic was tolerable, his lubricant was selectively sold and but blacks of course were not, nor were applied; the clients whose retainers he

new immigrants. Years earlier Davis had avidly procured were immune to the pain described himself as one of those ‘‘who he inflicted. resent all immigration in general and that Exaltation of craft eliminated the politof the Russian Jew in particular.’’ Davis ical and social implications of a lawyer’s Polk and its counterparts on Wall Street, work from consideration and sustained

State Street, and LaSalle Street were the illusion that law was science, not pol-

oases for club members whose social ori- itics. Proficiency certainly matters: how gins and character eased their journey to well something is done is never inconse-

elite status. quential, but the “morality of process,’’ to Character was necessary for club mem- quote a recent phrase of Alexander

bership but insufficient for professional Bickel,® is the highest morality only for distinction. Craft was the sine qua non of those trained from their first day in law elite professionalism. Only lawyers with school to separate method from _ subDavis’s “compulsion for technical perfec- stance. It is important to know, for exam-

| 358 Jerold S. Auerbach

ple, that Solicitor General Davis ther for these lads that I see passing

presented an argument in support of through this School from year to year,

broad federal power over commerce and nor for this country,... that we should civil rights that was as technically reward with the Presidency one to whom

impeccable as the argument that private big money was the big thing.’”’? Although

attorney Davis made in opposition to the White House eluded Davis and

both policies. But preoccupation with Hughes, virtually nothing that their procraft ignores the substantive differences fession could offer exceeded the reach of between these policies, the social conse- these supremely successful practicing quence of those differences, and the fact attorneys. Nevertheless, the professional that Davis argued the government’s cases culture exacted its toll. Its elevation of _ for six years and corporations’ cases for craft as the ultimate criterion of value half a century. The point is not that Davis detached process from purpose and was a hired gun, but that he consistently divided the psyches of its ablest pracsold his craft to the highest bidder while tioners. Although it sanctified these claiming that the practice of law was “‘an debilitating divisions and rewarded as avenue for service and not a means for lawyer’s lawyers those who submerged

private gain.”’ their personal. lives in their professional

Fifty years ago when Davis ran for careers, both Davis and Hughes disPresident, Professor Felix Frankfurter, played persistent symptoms of discomdismayed by the “crass materialism” of fort, avoidance, and repression. his students, wrote that “it is good nei-

Edward A. Purcell, Jr.

American Jurisprudence between the Wars: Legal Realism and the Crisis of Democratic Theory

During the 1930s the American legal pro- had been convincing more and more indi-

fession became the forum for one of the viduals that knowledge of the physical most bitter and sustained intellectual world and of human beings themselves debates in the nation’s history. A new could only be attained through the use of generation of legal scholars, inspired by the scientific method. By the beginning of Justice Oliver Wendell Holmes, Jr., and the twentieth century the pragmatism of attempting a scientific study of law, was William James and especially of John developing a sweeping critique of Ameri- Dewey had provided a broad philosophy can jurisprudence that went far beyond that attempted to explain the human and the criticisms of such sociological jurists social meaning of science and that sugas Roscoe Pound and Benjamin N. Car- gested how the scientific method could be

dozo. By 1930 their stinging attacks on employed to understand and resolve

established legal conceptions had human problems on all levels. Large

alarmed traditionally-minded jurists and numbers of American thinkers in many within a few years had raised distressing diverse fields began to adopt a more questions from the standpoint of demo- empirical, experimental, and relativistic cratic theory about the nature and basis of attitude toward the problems and guiding

law. The frightening challenge of totali- assumptions of their disciplines. The tarianism in the late thirties moved the impact of science and pragmatism, debate out of the realm of mere juristic together with the desire for the improvespeculation and gave it a tone of urgency ment of man’s social and political life that

and crisis. many intellectuals shared, brought new The new legal criticism developed out vitality, ideas, and methods to the

of the same intellectual environment that expanding social sciences.

generated new attitudes throughout Through such approaches as functiona-

American intellectual life. The increasing lism and behaviorism, American psychol-

prominence of the physical sciences, at ogists were striving to make their

least since the time of Charles Darwin, discipline experimental; the new science began to play an increasingly prominent Reprinted from American Historical Review, 75 role in the social thought of the twentieth

(1969), 424-446 by permission. century. By offering to explain the sources 359

360

Edward A. Purcell, Jr.

and nature of human behavior, psychol- inoperative where questions of an ethical ogy promised to bring the elusive human nature were concerned. Although a few factor under control and to enable social men such as Dewey maintained that the

scientists to make their work wholly scientific method could develop and sub- ,

empirical. ““The importance of the rapid stantiate moral values, most scholars in rise of psychology in recent years,” the interwar decades were not convinced. explained Edward S. Robinson, a psycho- The empirical documentation of wide-

logist working with Yale University Law spread cultural relativism by anthropoloSchool, “‘is that it supplies a background gists like Ruth Benedict confirmed the for a natural science of society which has relativistic trend, as did the analyses of hitherto been lacking.’’! Because psychol-. the nature of historical knowledge by ogy seemed to answer an intellectual need such scholars as Carl Becker and Charles that had grown acute by the twenties, Beard. By the early thirties both Beard and many social scientists turned toward its Becker were arguing that historical judg-

discoveries and theories with renewed ments could never be truly objective

hope and enthusiasm. because they were based on partial evi-

Rejecting the prescriptive theories of dence, were not subject to experimental classical economics, such scholars as testing, and were warped by the desires Thorstein Veblen and Wesley Mitchell and beliefs of the historian. Value judgstudied production and distribution as ments, Beard concluded along with most problems in the institutional behavior of of his contemporaries, ‘‘cannot be individuals and groups. ‘‘Economics,”’ ‘proved’ by reference to historical occurMitchell declared, “‘is a science of human rences or anything else.’’4

behavior.’2 Charles Merriam urged his While the basic attitudes of an empiri-

fellow political scientists to apply the dis- cal and relativistic social science spread coveries of psychology and the other throughout most of American intellectual social sciences to the study of politics, life, they penetrated legal thinking slowly and along with many of his colleagues and haltingly. As late as the 1920s the preproduced closely detailed studies of the |§=+=dominant legal theory still claimed that actual operations of governments, politi- judicial decisions were made on the basis

cians, and pressure groups. Bronislaw of rules and precedents defined historiMalinowski refined techniques of careful cally and applied mechanically. The

observation and description in anthropo- eighteenth-century concept of natural law logical field work and developed a theory served vaguely as the moral foundation of society based on the functional interre- for legislative and judicial actions, while lationships of all parts of a culture.* Sir William Blackstone’s statement of the

Throughout those disciplines the new common law provided many of the supempirical, experimental approach empha- posed first principles on which judicial sized the importance of analyzing social decisions were based. The old legal phenomena in terms of functions and theory claimed that reasoning proceeded

behavior. syllogistically from those rules and prece-

~ Along with the primary reliance upon dents through the particular facts of a case ‘scientific methods came a pervasive epis- to a clear decision. The sole function of

temological and ethical relativism. the judge was to discover the proper rules Because valid knowledge had to be based and precedents involved and to apply on empirical evidence, all a priori abso- them to the case as first premises. Once he lutes were unproved and unprovable. All had done that, the judge could decide the

knowledge was necessarily tentative and case logically with certainty and subject to change. Since science suppos- uniformity.>

edly dealt only with objective facts and In spite of its established predomi-

was morally neutral, the one practically nance, however, the old legal theory had reliable method of reaching truths was — already come under forceful attack by the

361

American Jurisprudence between the Wars

beginning of the twenties. As early as deis and, later, Felix Frankfurter argued 1881 Justice Holmes, then a young lawyer that judges must consciously consider the

in Boston, had published his famous probable social results of their decisions.

study of the common law, which he Scientific studies of social needs and

placed in an evolutionary Darwinistic problems, rather than syllogistic reasonframework. Holmes argued that practical! ing, should be the determining factor. To expedients, necessitated by the needs and guide the judges in their assessment of

conflicts of human society, were much those social results, both men employed more central to the development of law briefs loaded with a maximum of sociolothan were any logical propositions. The gical evidence and a minimum of logical

Common Law was, to use a congenial argumentation.’ ,

Holmesian metaphor, the first cannon Much of the theoretical justification for shot in his fifty-year battle against the the “Brandeis brief’? came from the work

armies of legalistic formalism. of a young law professor at the University By 1897 the basic outline of his scien- of Nebraska, Roscoe Pound, who wrote a tific, relativist attack was clear. Law was series of articles showing the need for and

not an abstract problem of logic, but a relevance of a new sociological jurisprupractical question of social management. dence. ‘‘The sociological movement in Judges did not in fact settle cases by jurisprudence,” he explained in 1908, ‘“‘is

deductive reasoning; rather they necessar- a movement for pragmatism as a philosoily decided what was socially desirable phy of law.’’® Agreeing with Holmes that

according to their personal and class legal scholars must study the way laws

beliefs. Those beliefs, like all moral val- operate in practice, Pound insisted that ues, were wholly relative and determined the overemphasis on logical uniformity by one’s particular environment. The and theoretical certainty that characterpower of deductive logic and the ethical ized much of the older approach often and social absolutes that the method frustrated the just practical settlement of claimed to establish were simply illusions particular cases. Only by studying the that masked the actual working of the social impact of legal principles and rules

legal process. By the law, Holmes could men know whether the law in fact declared, he meant no metaphysical brought about the administration of real

truths or grand moral principles such as a justice. While Pound and Holmes agreed

rationally knowable ‘natural law,’ but on many points, especially on the

only “‘the incidence of the public force mechanical and abstract nature of the

through the instrumentality of the older legal theory, Pound’s greater courts.’”’ The lawyer’s sole duty was to emphasis on the ideal of justice conflicted predict how the courts would use that with Holmes’s more cynical view of moral force, and hence to advise his clients most values in the law. Ultimately that dif-

effectively. Thus defining the law in ference would be one of the central reaempirical, behavioral terms, Holmes sons for Pound’s rejection of Holmes’s

urged his colleagues to study ‘‘the opera- disciples, who were to some extent also tions of the law” rather than its phraseol- his own, in the 1930s.

ogy or moral connotations.® It was thus in a rigid and formalistic

By the first decade of the twentieth cen- profession that nevertheless had protury other scholars were beginning to fol- duced a Holmes and a Pound, and in a

low Holmes’s lead and to apply the broader intellectual environment that insights of the new scientific, pragmatic recognized science as the method of

outlook. John Chipman Gray, a professor reaching truth, that the so-called legal of law at Harvard University, stressed the realists came of age. Of a sample of preeminent role of the individual judge as twenty-two of the most important new opposed to the logic of the law itself in critics only five had been born before deciding particular cases. Louis D. Bran- 1880, while eight were born during the

362

Edward A. Purcell, Jr.

1880s, and nine after 1890. By 1930 when system had, in fact, become unwieldy

their collective efforts were first termed since the 1870s when the National

‘legal realism” their average age was still Reporter system was inaugurated. At that only forty-two.? Thus the realists formed a time the West Publishing Company had younger generation of scholars, less com- begun printing all federal court opinions mitted to what they regarded as the rigid throughout the United States, in addition ways of the past and more willing to fol- to all higher and some lower state court

low new methods and ideas. Having decisions. By the beginning of the twen-

grown up with the spread of the scientific tieth century the National Reporter sysoutlook and the successful growth of the tem had turned the inevitably increasing

social sciences, they readily accepted a number of cases into an avalanche of

critical, empirical attitude and hoped to reported precedents that made it impossiapply it to the study of the legal process. ble for judges to stay properly informed.!? Facing the need to discuss the observed To their great chagrin and bewilderment, facts of judicial behavior, many of the members of the legal profession began realists turned toward psychological uncovering contradictory and conflicting theory for a scientific framework within decisions with ever-increasing frequency.

which to work. That plight was so widely recognized While their pragmatic attitude made that in 1923 Root and a number of his

them hostile toward the older legal theory orthodox colleagues helped establish the and their age put them in the position ofa American Law Institute to abolish confunew generation ready to criticize estab- sion by a clear and updated “‘restatement”’ lished methods, the state of American law of the law. The organization’s first report invited and even necessitated their devas- |§ emphasized, in addition to the flood of

tating attacks. The inconsistencies precedents, a number of other contribut-

between the practices of a rapidly chang- ing causes of legal uncertainty, including ing industrial nation and the claims of a a lack of precision in the use of legal terms ~ mechanical juristic system had grown so and a lack of agreement on basic commonacute by the 1920s that in the minds of an law principles.1* For many of the young increasing number of individuals the old critics the widely acknowledged confujurisprudence could no longer justify and sion was Clear evidence that the syllogisexplain contemporary practice. It had tic certainty of the law was a hollow claim become clear, Judge Cardozo declared in and that the actual role of the individual 1932, that “‘the agitations and the prompt- |§ judge was much wider and more crucial

ings. of a changing civilization’’ than the older jurisprudence allowed.

demanded more flexible legal forms and The very fact that the new American

demanded equally ‘‘a jurisprudence and Law Institute was attempting a “‘restate-

philosophy adequate to justify the ment” of the law was an additional factor

change.’’!° provoking the new critique. Such a resta-

At the same time even many of the strict tement assumed that law preexisted in -

proponents of the old jurisprudence had some whole form that could be discovered to admit that widespread confusion and by logical analysis and that the job of the

uncertainty threatened the American American Law Institute was merely to legal system. Such a stalwart of orthodoxy write it down. Most of the members of the

, as Elihu Root acknowledged that “the institute still believed in the validity of confusion, the uncertainty, was growing the older juristic method and thought that

worse from year to year’ and that as a a more rigorous application would result “‘the law was becoming guess- resolve all difficulties. Convinced that work.’’!! Root, like many other lawyers, law was a human product related to found the cause of confusion primarily in changing social and cultural conditions, the massive growth of case law during the the new critics rejected the idea of an offiprevious decades. The whole case law cial restatement as an impossible goal.*4

363

American Jurisprudence between the Wars

The practical experience of many of the when Llewellyn and Frank, then an attor-

realists served to strengthen their aware- ney practicing in New York, published ness of the changing and subjective ele- separate essays that struck the legal pro-

ments in the legal system. The great fession in rapid succession. Llewellyn majority of them had practiced law for at used the phrase ‘“‘Realistic Jurisprudence’”’

least a year before starting to teach, and to describe his suggested approach, and they were aware of the many individual, soon the term “legal realism’’ came to human factors that lay behind the actions stand for the general attitude of all the of lawyers and judges. They knew first- new critics. While most of the so-called hand the conflicting and confused nature realists disliked the label, their enemies of many precedents and rules. Such prac- seized upon it as an epithet to brand what

tical experience, as well as their prag- they considered an unsound and often

matic outlook, helped lead many of them dangerous attitude. |

to hostility toward the older jurispru- _ Llewellyn’s article on ‘Realistic Jurisdence. Recognizing the need both to prudence’”’ centered on the distinction

understand the actual relationship between abstract legal verbalisms and between law and a changing society and concrete empirical facts. ‘“The traditional

to explain the reasons behind contem- approach is in terms of words; it centers porary practice, they began their con- on words,” he explained, adding poincerted though diverse probing for a new tedly, “it has the utmost difficulty in get-

and scientific jurisprudence. ting beyond words’’.15 Legal phrases and

By the end of the twenties Yale, Colum- concepts were simple devices to make bia, and Johns Hopkins had become the the world more manageable, but the hiscenters of the new legal criticism. Charles tory of American law showed that those E. Clark, who succeeded Robert M. Hut- necessary abstractions ‘‘tend to take on chins as dean of the Yale University Law — an appearance of solidarity, reality and School in 1929, brought such aggressive inherent value which has no foundation

scholars as Jerome Frank, Walter Nelles, in experience’. Hence they led to a William O. Douglas, Thurman Arnold, rigidity that forced new facts and situaand Robinson to New Haven. In coopera- tions to conform to outmoded concepts .

tion with Johns Hopkins University three or else ignored the new altogether. Much

of the most scientific minded critics, of the law was an exercise in painful defWalter Wheeler Cook, Herman Oliphant, inition and strained syllogism that bore and Hessel E. Yntema, founded the little resemblance to the real world it was research-oriented Institute of Law in supposed to govern. 1929. At Columbia University Karl N. Such an important concept as that of

Llewellyn, often regarded as the most the legal rule. was a perfect example of

important of the new critics, joined with the danger and ambiguity inherent in Edwin W. Patterson, Underhill Moore, rigid abstractions, Llewellyn declared. and others in publishing sharp essays While such authoritative rules were supprobing the weaknesses of traditional posed to lead judges to proper decisions,

jurisprudence. Dean Leon Green of North- they were in fact so vague and confused western University, Felix S. Cohen of the as often to be no help at all. When law-

New School for Social Research, Max yers talked of legal rules, no one knew Radin of the University of California, whether they were the lawyer’s rule or Thomas Reed Powell of Harvard Univer- the court’s; whether they represented sity, and Judge Joseph C. Hutcheson of the what the courts should do, or what they United States District Court in Texas were had done in fact; whether courts actually

among those whose work placed them in followed them, or merely used them to

the forefront of the new movement. justify a decision reached on other

The intense debate over legal realism as grounds. Such fuzzy conceptions of legal

a collective movement began in 1930 rules led to large-scale uncertainty and

364 ,

Edward A. Purcell, Jr. ,

contradiction in actual decisions and Accepting most of Llewellyn’s ideas,

caused massive and often absurd twisting Frank went far beyond them in earning of terms in legal argumentation. Funda- his reputation as one of the most extreme mental conceptual imprecision, Llewel- realists. Whereas Llewellyn believed that

lyn concluded, could only mean rules and precedents were relevant and “confusion, profuse and inevitable.’”17 | of some importance, Frank did not even

He insisted that there was almost consider them a meaningful part of the

always a gap between the so-called rules = law. To him law meant a particular judi-

of a case and its practical settlement. cial determination upon a particular and

Admitting that legal rules had some singular set of facts. Reducing law to uncertain influence on judges, he reso- what he considered an unequivocal

lutely maintained that a realistic study of empirical minimum, Frank equated it the law demanded an examination of the solely with the specific individual judiextent to which the rules actually con- cial decisions. ‘‘Until a court has passed trolled or influenced the case. ‘‘You can- on these facts,” he insisted, ‘‘no law on

not generalize on this, without that subject is yet in existence.’’?!

investigation’’, Llewellyn insisted. If men Rules and precedents were not part of were ever to understand the legal system, the law because they had little if any

they would have to study individual effect on actual judicial decisions. No

cases empirically. ‘‘The significance of one could reason out a decision by syllothe particular rule’, he stressed, ‘‘will gism, Frank declared. Instead judges had appear only after the investigation of the “hunches” about how cases should be vital, focal phenomenon: the behavior’’.18 decided and then looked up the proper Llewellyn’s empirical approach concen- rules that would support their ‘hunch.”’ trated on behavior as the proper subject ‘Judicial judgments, like other judg-

of study for the legal scholar. Behavior = ments,’’ Frank maintained, ‘“‘doubtless in

was real, whereas most legal argumenta- most cases, are worked out backward

tion was simply verbal game playing. from conclusions tentatively formu-

Following Holmes’s lead, Llewellyn lated.”’?? A judicial opinion was actually defined law in terms of the coercive ~— only the judge’s rationalization, not the actions taken by government officials. real explanation for his decision. Judges Regardless of syllogisms and definitions, manipulated precedents in the same way:

the actual law was what the public force after they made their decision, they would support. ‘“‘What these officials do sought favorable precedents or reinter-

about disputes,’ Llewellyn wrote in a preted unfavorable ones to support it. sentence that returned to haunt him, “‘is, ‘‘What the courts in fact do,’’ Frank

to my mind, the law itself’’.19 Using such charged, ‘“‘is to manipulate the language

a definition, the whole legal process was of former decisions.”?3 clearly susceptible to empirical study. As a result of realistic, empirical analyAgain following Holmes, Llewellyn sis of actual decisions, it became clear declared that concepts of justice and ethi- that the law was not a rational whole, nor cal right had to be ignored when the even largely logical. In addition to peractual operations of the law were ana- sonal prejudices, judicial objectivity was lyzed. Such concepts merely ‘confused further deflected by the necessity of relythe investigator by mixing considerations ing on secondhand evidence concerning

of ‘ought’ where only the realities of the facts, relayed by lawyers, parties to “is” were relevant. “The most fruitful the case, and witnesses who distorted the thinking about law,” he remarked, “has facts through prejudice, misunderstandrun steadily toward regarding law as an ing, ignorance, or simple falsification. engine (a heterogeneous multitude of The facts of any case were thus necessarengines) having purposes, not values in ily elusive and essentially subjective. The

itself’’.2° , law was vague, uncertain, and necessar-

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American Jurisprudence between the Wars

ily partial and prejudiced. ‘To predict pletely contradictory judicial decisions the decisions of the courts on many a as “‘logical’”’ under the same principle or point,” Frank argued, ‘“‘is impossible.’’24 precedent. In spite of the practical uncertainty and Although he declared that the great subjectivity, Frank continued, most law- majority of men believed in the certainty yers and judges still insisted that law was of law, Frank was primarily interested in,

essentially rational and certain. The and hostile toward, traditional legal explanation for that contradiction, he theories and their contemporary advosuggested, lay in what he called the cates who controlled the bench and the

“legal absolutist” mind. The father-child bar. Using a technique reminiscent of pattern, bred deeply during every indi- that of Veblen, Frank on several occavidual’s childhood, drove most men con- sions remarked in footnotes or appentinually to seek some powerful authority dixes that his psychoanalytic approach

figure which would act as a substitute for provided only a partial explanation for

the ‘‘Father-as-Infallible-Judge.’’?5 the legal quest for certainty. But after Because the law served as a natural making that qualification in obscure authority figure, Frank concluded, it sub- places, usually he continued in the text consciously stimulated the latent child- to write as if that approach were the only

ish emotions of those who studied it. explanation. Indeed, while consistently ‘“‘We would seem to be justified in sur- proclaiming lawyers and judges highly mising that the subject-matter of the law intelligent and learned men, he described is one which evokes, almost irresistibly, them throughout as immature, childish, regressive emotions.’ Most lawyers and and irrational. judges, therefore, unconsciously devel- The two works by Frank and Llewellyn

oped an ‘‘absolutist’’ viewpoint that had an immediate impact. Pound, then

made them see the law as a father-like dean of the Harvard Law School and the authority figure, necessarily certain and most renowned legal scholar in America, just in operation. That subconscious responded early in 1931, ironically in an drive prevented them from recognizing issue of the Harvard Law Review dedi-

the true nature of the legal system. cated to Justice Holmes on his ninetieth The manipulation of abstract concepts birthday. Although Pound had earlier provided the method with which lawyers espoused many of the attitudes asso-

and judges could construct a facade of ciated with realism, by 1931 he had

certainty and absolute rationality over become wary of some of the more radical the confused legal process. Referring to implications of pragmatism and positisuch manipulation as ‘‘Platonism’’ and vism in the law. He was perhaps, in addi‘“‘Scholasticism,’’ he charged that the tion, moved to reply by the fact that both ‘“absolutists’”’ used ‘‘magical phrases” to Llewellyn and Frank had specifically

convince themselves that all was well attacked his work on juristic theory.

and to rationalize awkward facts. Frank Undoubtedly having Frank most clearly

considered concrete facts as the only in mind, Pound accused an unnamed important reality. Such abstract rational- group of “realists” of allowing their izations were merely escapes and delu- naive faith in empiricism to lead them sions. “‘Virtually empty concepts,’ Frank into a philosophical nominalism that

remarked, ‘‘seem to give to the metaphy- denied the existence of legal rules, doc-

sician the stable world he requires.’’?’ trines, principles, and concepts. They Because the concepts were empirically overemphasized irregularities and conempty — they did not bear a definite and tradictions and ignored the uniformity constant relation to any concrete reality and reasonableness of the law. By focus- .

— they were liable to all kinds of twist- ing on subjective motives and behavior of

ing and reinterpreting. In such a way judges, Pound asserted, the realists were lawyers were able to reconcile com- leading legal science into a dead end.?8

366

Edward A. Purcell, Jr. Considering his attack unfair, Llewel- | government. The most important practi-

Iyn and Frank replied jointly and _ cal point of their argument was to ques-

claimed Pound’s criticisms were almost tion and in many cases to reject the idea wholly unwarranted. The importance of of a government of laws rather than of

the reply was that Llewellyn and Frank men. While most democratic legal

gathered together and defended twenty — theories — and the United States Consti-

of the better-known critics who, they tution — held that established and

explained, could be taken as a fair sam- known laws alone should be binding on

ple of the new approach to the law. free citizens, the realists maintained that While emphasizing that the twenty repre- | such laws were nonexistent and impossi-

sented no ‘“‘school’’ and were by no ble to attain. Frank had argued that law

means in complete agreement in their was uncertain in administration and

own attitudes, Frank and Llewellyn depended largely on the subjective moti, admitted that their criticisms of existing vations of the particular judge who heard

legal theory gave them a unified _ the case. “It is fantastic, then,’ he had approach. By the end of 1931 the new declared, “to say that usually men can

critics had been attacked and defended, = warrantably act in reliance upon ‘estaband, most importantly, they had been lished law.’ ’’31 personally identified and categorized.2° Frank based much of his analysis of the

While Frank alone had attempted a judicial process on the work of Judge

sweeping psychoanalytic interpretation, | Hutcheson, who claimed that all judges

he and Llewellyn had agreed on several reached their decisions by “hunches” key points. They assumed that human _ based on an “intuitive flash of underknowledge could never be certain and standing’ that revealed the proper deci-

uniformly logical and that law wasacon- sion in a case. He was referring,

stantly changing phenomenon. They MHutcheson pointed out, not to the ratiodenounced abstract verbal formulas and nalization or the ‘‘logomachy”’ that the absolutes as the bane of clear thinking, judge used to explain his opinion, but to legal or otherwise. They agreed that the the actual way in which he decided a “is” and the “‘ought’’ should be tempo- case. ‘‘The vital, motivating impulse for rarily separated for the purpose of precise — the decision,’ he remarked, “‘is an intu-

study. Finally Llewellyn and Frank were itive sense of what is right or wrong for united in calling for careful empirical that case’’.3? If that were the process of studies of the way the law actually decision, then the social, economic, and operated in society, with an emphasis on moral values of the judge were far more

the dubious practical impact of legal § important than the rest of the legal strucrules and the likelihood that judicial — ture, and the law was clearly a subjective, opinions were at least partly rationaliza- | changeable phenomenon.

tions. Because of that focus on judicial Most of the new critics accepted an

motivation, both of them, like most real- analysis similar to Hutcheson’s and tried ists, looked to their colleagues in psy- _ to base their legal theory on a subjective

chology for clues to help explain the conception of judicial decisions. Radin

legal process. Behaviorism, Freudianism, emphasized the number of conflicting and abnormal psychology all played a _ rules that pertained to any case. In such a role in the new movement.?® Around _ situation the judge was forced to decide those basic attitudes the realists centered cases on an expectation of their probable their attacks on traditional jurisprudence. social results. Since that meant a reliance Although the young critics were firm on the judge’s subjective value standards, believers in democracy, most of them the process was actually a matter of perembraced an empirical relativism that sonal motivation. “Judges, we know, are

raised both practical and theoretical people,’’ Radin commented, and they questions about the nature of democratic thus make their decisions like all other

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American Jurisprudence between the Wars

people.73 Yntema make the point even meant ‘“‘a point of view, which, whatever more explicitly: ‘‘The ideal of a govern- may happen to specific doctrines, seems

ment of laws and not of men,” he main- destined to remain as a permanent

tained, “‘is a dream.’’34 The subjective achievement in human thought.’’%° Neimotives of the judge, not the existence of ther legal nor moral theory could escape rules, or even constitutions, provided the that era.

key to understanding the law. Applying the scientific, relativist Morris R. Cohen, a philosopher at the approach to the question of legal and

City College of New York and a leading moral standards, Moore, who taught first critic of realism, pointed to the antidemo- at Columbia University and later at Yale,

cratic implication of such a judicial similarly rejected the idea of absolutes:

theory. ‘““To be ruled by a judge,’’ Cohen “Ultimates are phantoms drifting upon declared, ‘‘is, to the extent that he is not the stream of day dreams.”’ Arguing for a

bound by law, tyranny or despotism.’’35 pragmatic standard of judgment, he

When the realists claimed that the insisted that “human experience dis-

judge’s subjective decision was the only closes no ultimates.’’37 Nelles, a professor

law, he implied, they were justifying at Yale University, carried the approach

judicial despotism. to its extreme. ‘I deny ethical right and At that point, the theoretical force of ought without qualification,” he declared

the realist critique became clear, for it in 1933. He scorned the possibility of

rejected any concept of a higher law that both scientific and deductive ethics. ‘In

could provide judges with objective, the twentieth century,’ he remarked,

rational guidance to assure a just opera- ‘popular feeling of the wickedness of tive law. A pervasive scientific relativism denying ethical right and ought can no that seemed to undermine any objective longer command the unconscious deferor absolute moral standard underlay the ence of an important mind.’’3% In the realist approach. Llewellyn and Frank minds of most of the realists there could had both assailed abstract logic and be no such thing as a demonstrable moral

deductive rationalism and scorned the standard.

absolutes that those approaches gen- The pragmatism and apparent ethical

erated. Their determination to make con- relativism of men like Cook, Moore, and crete empirical facts the touchstone for Nelles shocked much of the legal profesall analytical concepts seemed necessar- sion. Although the counterattack did not ily to exclude ideas of ‘“‘ought”’ in favor of reach its bitterest phase until after 1935, facts about “‘is.” If what men ought to do it had clearly begun by the early thirties. was not identical with what they did in John Dickinson, one of Pound’s leading

fact, then there was no basis in their disciples, and Hermann Kantorowicz, a

approach for discussing moral concepts professor at the New School for Social except as mere psychological data. It Research, criticized the realists for dis-

would, in any case, be impossible to missing the importance of rules and establish the objective validity of any pointed to the philosophical difficulties

such ethical values. in their approach.?? Hutchins, then presi-

Some of the realists made their relati- dent of the University of Chicago, and vism explicit and direct. Cook, another of Mortimer Adler, a prominent philoso-

the founders of the Institute of Law at pher, joined the assault on realism,

Johns Hopkins University who had been basing their attacks on an Aristoteliantrained first as a physicist, looked enthu- Thomistic philosophy. Rationally knowsiastically to the physical sciences for his able moral principles, not inchoate legal inspiration. Scorning the futility of empirical facts, were the proper foundadeduction, he emphasized that human tion of jurisprudence.*° By excluding ethknowledge had ‘‘reached the era of rela- ical considerations and reverting to a tivity.” By relativity, he explained, he philosophical nominalism, many schol-

368

Edward A. Purcell, Jr. , ars believed, the realists were necessarily While the early critiques of legal real-

making force the only meaningful arbiter ism tended to be mild and often discriof human affairs and destroying the ethi- minating, by 1936 they were becoming

cal basis of democracy. , wholly denunciatory. The tone of the

To harm the cause of democratic gov- attack grew in bitterness in proportion to ernment was the last thing the realists the spread of fear and uncertainty created hoped to do. In attacking traditional by the success of the totalitarian governabstractions and nonempirical concepts ments of Europe. As Americans became of justice, they were usually assailing more acutely aware of the despotic and what they considered the practical injus- repressive practices in Russia, in Italy, tices of American society. Abstraction in and most especially in Germany, the economics and politics, as in the law, great majority condemned them in clear they believed, had been one of the big- and forceful terms. As the possibility of gest obstacles to the attainment of a truly another war drew nearer, they clung democratic society. Frank, Oliphant, more tightly to the ideal of democracy as Clark, Arnold, Douglas, and Felix Cohen the best and morally ideal form of govwere all ardent New Dealers who shared ernment. The realists had raised, unina strong hostility to the method of juristic tentionally, fundamental questions about reasoning that struck down social-wel- the possibility and validity of democratic fare laws and wrought what they consid- government at a time when the country ered great human injustices. Most of the needed reassurance and conviction.

other realists expressed equally strong Inside the ominous framework con-

disapproval of the social and economic structed by the existence of the totalitarsituation of the thirties. The new criti- ian governments, a new extremism in the cism was thus not intentionally hostile realist movement itself was working to toward the idea of democratic govern- invite the bitter attack. In 1935 Robinson

ment. Indeed, after 1932 it lent itself and Arnold, who jointly conducted

readily to the support of concrete politi- siminars at the Yale University Law cal reform. As early as 1931 Frank School on psychology and the law, pubdefended the realists against charges that lished studies that assumed a sweeping

they excluded ethical considerations ethical relativism. Robinson, who from the law. ‘“‘The point is,’”’ he retorted, revealed a marked antipathy toward tra-

“that the rational and ethical factors are ditional deductive juristic thought, _ thwarted in their operations by the con- argued that the whole legal system ventional tendency to ignore the non- should be reformed in line with the dis-

rational and non-ethical factors.’’*1 The coveries of modern scientific psychology.

problem was not whether there was Committed to a thoroughgoing empiricsomething abstract called justice, but ism, he charged that ‘‘there is not now rather how human relations could be and never has been a deductive science made more just in practice. Though the of ethics.’’42 Moral values developed, theoretical problems the realists raised instead, out of concrete situations and left them open to bitter attack, the obtuse were intelligible only in that context. No formalism of American constitutional absolute, abstract, or universal moral val-

interpretation throughout the first third ues existed. of the twentieth century helped drive Arnold went beyond Robinson’s posithem to their extreme positions. The tion and argued that abstract theories and manifest human needs created by the moral values were not only unfounded, depression further convinced them of the but were wholly mythical. Moral ideals

need for a more realistic and flexible served only as satisfying symbols for

legal theory to attain what they consid- emotional needs and had no further con-

ered a truly democratic society. __ nection with anything real. The proper

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American Jurisprudence between the Wars

way to study theories and ideals, Arnold shared some of the attitudes associated explained, was to ignore them as “‘princi- with realism, but by 1934 he had turned ples of truth’ and regard them simply into a stalwart critic. Realism attempted ‘fas symbolic thinking and conduct the impossible, he argued, for man could which condition the behavior of men in never ignore the ethical problems in the groups.’’43 In fact,- he concluded, if law, not even for the alleged purpose of theories were to be effective as emotional scientific scholarship. In the end realism symbols, they would have to be empiri- “remains formal and sterile’. Such a negcally false. In his sweeping rejection of ative attitude spreading through society the validity of such ideals Arnold left no was a major cause, he explained, ‘in basis for distinguishing between morally bringing Germany and Spain to the disasgood or bad symbols or for establishing ters which engulfed those countries.’’47

the legitimacy of any ethical position Though Pound and Fuller attacked whatever. In his approach ethical values realism vigorously, the most severe and

faded through relativism and out of extreme attacks came from a number of

existence. Catholic legal scholars who during the Shortly after their two books were pub- thirties helped to generate a resurgent lished, at a time when men could see the Neo-Scholastic legal movement in the rampant brutality of Nazism, the vigor- United States. Much of the impetus came ous counterattack began its harshest from the work of the American Catholic

phase. Rufus C. Harris, dean of the Philosophical Association, which estabTulane University Law School, Philip lished a round table on philosophy and

Mecham, a professor at the University of law at its meeting in 1933. In addition to Iowa Law School, and Morris R. Cohen sponsoring scholarly papers and mono-

all charged that realism paved the way graphs, the round table attempted to

for totalitarianism by denying objective organize a unified jurisprudence among ethical standards and making law an professors at all Christian church-related amoral coercive force.44 Edgar Boden- law schools in the country. Although heimer, an attorney in the Solicitor’s relatively few non-Catholics expressed Office in the Department of Labor, argued interest, the suggestion drew support the same line in his important work on from many Catholics who saw the situajurisprudence. “There is a certain danger tion as desperate. that the skepticism of realistic jurispru- As other critics had done, the Catholics dence may, perhaps very much against pictured realism as ethical relativism the intents and wishes of its representa- undermining the foundations of democtives, prepare the intellectual ground for racy. Those who adhered to such doca tendency toward totalitarianism. ’’45 trines as pragmatism and empiricism, as The growing condemnation of realism the realists did, declared Dean Clarence reached a climax in 1940 when two of Manion of the Notre Dame University the most prominent legal scholars in the Law School, were betraying the Ameri-

country, Pound and Lon L. Fuller of can citizen and “preparing to sell him Duke University, published lectures into slavery.’48 Such dire predictions

assailing the new movement. Pound had exceeded those of most other critics, for long been critical of realism, and by 1940 many of the Catholics refused to qualify he was ready to name it a “‘give-it-up phi- them in any way. They saw such a defi-

losophy.”’ Refusing to discuss the work of nite and direct causal connection any particular individual, he issued a between ethical relativism and totalitariblanket charge against them all: ‘“‘The anism that they seemed to believe in political and juristic preaching of today what has been called the autonomy of leads logically to [political] absolu- ideas. Disregarding such factors as ecotism.’’46 Fuller, like Pound, had earlier nomic structures and political institu-

370

Edward A. Purcell, Jr.

tions, they argued that the ideas erty League. When he charged in 1941

associated with legal realism and ethical that realism was “radically subversive of

relativism, by themselves, would lead the American way of life,’ few could

- naturally and inevitably away from tradi- have doubted that he had specifically in tional democracy to a ruthless totalitari- mind the realist argument for a more per-

anism. ‘‘Godless Behaviorism and missive constitutional attitude toward

Pragmatism are the headhunters, with New Deal legislation.5? For those who

Democracy and popular sovereignty the already regarded the New Deal as protovictims,’”’ declared Father Francis E. totalitarian there was no real distinction Lucey, a regent of the Georgetown Uni- between attacking the Roosevelt adminis-

versity School of Law. ‘‘Democracy tration and condemning legal realism as

versus the Absolute State means Natural antidemocratic. Rather, the accepted fact

Law versus Realism.’’49 of New Deal regimentation gave evidence While the reaction against pragmatism to the charge against the legal attitude

and relativism was bitterest in the legal that defended and justified such

profession, the attack spread through all regimentation. |

areas of American intellectual life. In the There was a different ulterior motive fields of history, philosophy, literature, behind the attacks of most of the Cathoand the social sciences many scholars lics, who politically were generally symbegan pointing to the dangerous implica- pathetic to the New Deal. The intellectual

tions of scientific relativism and con- attitudes they associated with legal real-

demning their colleagues who had ism denied their deepest articles of reliembraced some form of it. By 1937 gious faith and emotional conviction. Walter Lippmann had completely The Catholic faith in its fundamentals

rejected his earlier pragmatism and con- was indissolubly linked with a hierarchi-

demned the ‘‘aimless and turbulent cal institution that claimed ability to

moral relativity” of twentieth-century interpret an absolutely true moral law, social thought.5° Hans Kohn, Lewis based on the truths of revelation and reaMumford, Reinhold Niebuhr, Thomas son. Realism and modern empiricism Mann, Alvin Johnson, and Van Wyck rejected those foundations, and the Cath-

Brooks were among those who joined in olics began their assault in defense, not blaming pragmatists and relativists for just of their conception of democracy, but the desperate state of world affairs. ‘““This of their Church. Because of their relirecognition of guilt must pave the way, gious and philosophical conviction that not to maudlin regrets,’ they declared in such attitudes were false and evil, they a united manifesto, “but to immediate quickly identified them with the practice

atonement.’’51 of totalitarianism, which was also false

_ Although the critics of legal realism § and evil. A number went so far as to

undoubtedly believed that the new atti- identify American democratic ideas with

tude directly threatened the existence of their own Catholic philosophy. The

democracy, many of them were animated ‘definite American philosophy of life,” also by other social motives. Some crit- explained one typical writer, was ‘‘drawn ics, for example, were representatives of directly from the Catholic philosophy of , the wealthy groups that had violently life.’”’53 Having long been considered not opposed the New Deal since 1934 and completely American, the Catholics were correctly understood the devastating rele- at last able to assert their legitimacy by vance of realism to their strained method defining themselves as the true descenof constitutional interpretation. One of dants of the American Revolution, and at the most extreme attacks, for example, the same time discrediting their dangercame from a New York lawyer, Raoul E. ous intellectual adversaries.>4 Desvernine, who had been in charge of Whatever their motivations, the attacks the Legal Division of the American Lib- — had an effect. Much of the work of the

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American Jurisprudence between the Wars

realists had slighted the importance of ‘“‘Most intelligent Americans, if the ‘basic

ethical theory. Their philosophical principles’ of Scholastic natural law are

assumptions had undermined the con- described to them,” he argued, ‘‘will find cept of a rational moral standard. Their them completely acceptable.’’5* Three ethical relativism seemed to many to years later he made his position clear and mean that no Nazi barbarity could be unequivocal: “I do not understand how justly branded as evil, while their identi- any decent men today can refuse to fication of law with the actions of gov- adopt, as the basis of modern civilization,

ernment officials gave even the most the fundamental principles of Natural

offensive Nazi edict the sanction of true Law, relative to human conduct, as stated law. Juxtaposing that logic to the actions by Thomas Aquinas.’>? Although Frank of the totalitarian states, the critics had still called for empirical analysis of the painted realism in the most ominous and legal system and insisted on the uncer-

shocking colors. tainty and confusion in the application of

The damning charges forced the real- principles, he had come a long way from ists to assert their innocence. ‘I hope,”’ the philosophical implications of Law declared Radin, ‘‘I have never said that and the Modern Mind. ideas like wrong and right, or any ideas, Llewellyn, too, moved in the direction are worthless or meaningless terms.’’55 of natural law, though he stopped short An empiricism that tried to predict actual of Frank’s enthusiastic acceptance. decisions was ‘‘an incomplete way to see Although he acknowledged a recent law,” Llewellyn admitted in 1940, for “debt” to Aquinas for the Schoolman’s “the heart and core of Jurisprudence”’ work on the philosophy of law, Llewelwas the problem of ethical purpose in the lyn embraced neither Thomism nor the law. “I for one,’ Llewellyn exclaimed, whole doctrine of natural law.®® He ‘“‘am ready to do open penance for any accepted instead the general idea of a part I may have played in giving occa- natural law, but translated it into a less sion for the feeling that modern juris- precise and more intuitive concept. Natuprudes or any of them had ever lost sight ral law, he believed, was the name given of this.’’5° Frank, Yntema, Patterson, and for a universal human ‘‘urge”’ or ‘“‘drive”’ Felix Cohen all explicitly defended the for ‘right, or decency, or justice’. Rather realists against their critics, arguing that than being the opposite of legal empiric-

they had never denied an ethical goal in ism as many had charged, Llewellyn the law.5” That defense was only partially declared, natural law was ‘‘an interesting relevant, however, since the fundamental and highly useful complement”’.®!

question was actually whether the basic While Llewellyn added a general conphilosophical and methodological cept of natural law to his legal theory and assumptions that characterized realism emphasized the importance of proper left any rational basis for affirming the ethical ends in law, he remained true to

legitimacy of an ethical goal. his empiricism and retained a sharp Facing a barrage of criticism for his skepticism concerning the powers of extreme views, Frank ultimately drew deductive logic. “When it comes to ulticloser to the natural-law school than any mate substance of the Good,” he wrote

of the other realists. During the early for- early in 1942, “I repeat that I can find no ties he looked increasingly for the moral clarity, or any conviction of reason, or of justification of democracy and seemed to deduction as to specific matters, from the find it in the Thomistic concept of natu- broad ultimates others have found clear’ ral law. By 1945 he was maintaining that If pressed for an ultimate justification for

most Americans refused to accept the democratic government, or for any valconcept of natural law only because of a ues, he admitted, ‘‘I have no answer’’.®?

confusion in terminology that gave them In spite of their early leadership, neithe wrong idea of its true meaning. ther Llewellyn nor Frank was typical of

372

Edward A. Purcell, Jr. —

the other realists in the move toward nat- little of their ability to retaliate. Pound’s ural law. Radin perhaps best represented condemnation of realism in light of his

the others. Acknowledging that realism own earlier work, Yntema charged,

must place an added weight on ethical “bears a tragic aspect of schizologic aberconsiderations, he declared that ‘‘the ration.”’®* Fuller’s legal theory, Patterson lawyer’s task is ultimately concerned pointed out, was marred throughout by a with justice’ and emphasized that ‘‘any pervasive ambiguity. ‘‘Surely the clarifi-

legal teaching that ignored justice had cation of basic confusions does not

missed most of its point.’®? But even hamper the exercise of the creative reawith the modification in his outlook, son,” he commented dryly.®’ Myres S. Radin remained a convinced empiricist McDougal, a young professor at Yale with no use for abstract formulations. University, accused Fuller of “preaching Justice or any other idea, he declared in pseudo-inspirational sermons.’ The day 1940, ‘‘has no objective existence”’. would come, McDougal hoped, when Hence it existed only in the minds of lawyers could be trained as scientific men and was, therefore, only meaningful scholars ‘‘and not as priests in outworn to the extent that actual men subscribed and meaningless faiths whether of ‘law’ to it. In that case the concept of justice or of ‘ethics’.’’®® Fred Rodell, another of held by juridical officials was the source the younger realists, charged that all of a community’s operative concept of those legal thinkers who spoke in sacred

justice. “‘In the last analysis,’ Radin terms of some abstract ‘‘Law’’ had been argued, ‘“‘justice must be a common “taught in mental goose-step.’’® It was denominator of what a specific group— only appropriate to the spirit of much of the judges themselves—think is just.’’® the debate that Walter B. Kennedy, a ‘‘Objectified”’ justice was real, fundamen- leading Catholic scholar at Fordham Unital, and essential, but it was necessarily a versity, returned the same charge in 1941

changing justice, wholly relative to the by calling realism a ‘‘goose-step

moral beliefs of the community in gen- philosophy.”’”°

eral and of the judges in particular. By 1941 when America entered the

Thus, while the realists modified their | Second World War, the bitter debate tone and protested their innocence, they within the legal profession had reached did not, with the exception of Frank, give its most intense phase, and it revealed a in to their critics on any fundamental number of important facts about Ameripoint. They agreed that deduction was can thought in general and legal theory sterile in the field of values and claimed in particular. Most important, the debate that their critics were as unable as they demonstrated the depth of a basic split

were to demonstrate conclusively the that divided two groups of American ultimate validity of any ethical ideals. intellectuals who, for want of better

Most would have agreed with Cook, who ' terms, might be called scientific relaticompared the advocates of deductive eth- vists and rational absolutists. On the one ical systems to the infants in John Wat- hand, the realists owed their inspiration son’s experiments who exhibited ‘‘fear | and intellectual attitudes to a cluster of ©

reaction’ when they lost their sense of | ideas associated with modern science.

physical support. ‘‘They fear the loss of | Truth was wholly dependent on empirisupport of fixed principles which can be cally established facts and hypotheses, used automatically in cases of doubt,”’ they agreed, and it was necessarily tentaCook charged, and hence they struck out _ tive and relative. On the other hand, the wildly at those who pointed to the limits | absolutists, such as Hutchins, Adler, and of human reason and suggested the true the Catholics, believed that human rea-

relativity to be foundinreality.65 son could discover certain universal As most of the realists lost little of their | principles of justice by analyzing philo-

confidence in science, so, too, they lost sophically the nature of reality. Deduc-

373

American Jurisprudence between the Wars

tive logic could demonstrate the truth of totalitarian ideology and practice, that propositions and lead man to correct some supralegal moral standard was necapplications in settling particular, practi- essary as the basis for ethical judgments.

cal questions. The universal principles Torn between two conflicting attitudes,

formed for the absolutists the basis for all they tried desperately to reconcile them ethical knowledge, which was demon- or to develop a coherent ethical position

strably certain. ~ that would withstand the criticisms from These two fundamentally irreconcil- both sides. Fuller’s concept of natural

able attitudes were in large part responsi- law, for example, placed him distinctly ble for the intensity and extremism in the outside the realist movement, but failed

debate. Since both sides started from to bring him into any real philosophical

widely divergent assumptions, they were agreement with the Thomists. It was too

often unable to understand, let alone abstract for the one side and too positi-

sympathize with, their enemy’s position. vistic for the other.

The realists saw rational absolutism as The long debate also clearly revealed pointless and often subjected it to ridi- the plight of ethical theory in the middle cule and scorn. Felix Cohen referred to it of the twentieth century. The incisive as ‘‘Transcendental Nonsense,’ while criticisms of modern philosophy and the

Arnold and Frank compared it to super- dramatic impact of experimental science stitious incantations chanted by witch had made rational absolutism untenable

| doctors and faith healers. The rational in the minds of most educated Ameriabsolutists returned the scorn in full, cans. Many were ready to conclude that charging the realists with everything moral justification in any ultimate sense from atheism to Communism to nihilism. was an impossible and meaningless con-

As the realists were often unable to cept. “Having surrendered the quest for

understand how anyone could accept certainty,’ Cook insisted, quoting Dewey, some of the canons of rational absolutism ‘we can offer no guarantees.’’?! Though in light of the discoveries of modern difficult to deny intellectually, that conscience and philosophy, their critics clusion was dissatisfying to most Ameri-

were equally unable to see how any man cans at the time when Nazism was could fail to accept that which was self- perpetrating its outrages on both Ger-

evident and necessary to give support to many and the rest of Europe. a universally valid ethical system. Such a The apparent success and spread of the system was necessary, they continually totalitarian ideologies, backed by military insisted, if men were to condemn totali- might, exacerbated the internal division tarianism rationally. With each side com- in American thought and placed the fun-

mitted to its own obvious truths and damental problem of the ethical basis of ,

faced with an implacable opponent, vili- democracy into clear relief. The barbarity

fication and the questioning of motives and repression evident in the various became an almost automatic recourse. totalitarian countries enraged most Those who would not see must have American intellectuals. Feeling the deep some hidden and unworthy purpose. need to condemn them in the clearest That deep division was also evident in and strongest terms, they were forced to the awkward positions taken by Pound, deal in some way with rationally based Fuller, Morris Cohen, and a number of ethical judgments. That necessity created

other critics of realism. Such scholars immense stress in the minds of many knew the severe limitations of deductive who either doubted the possibility of logic and were committed to some form such judgments or found themselves

of legal empiricism. At the same time, unable to produce them. Some, like

however, they saw many of the theoreti- |= Becker and Malinowski, turned on much

cal problems realism created, and they of their earlier work and argued that

agreed, when faced with the challenge of there were broad moral values that in fact

374 | Edward A. Purcell, Jr.

did support the ideal of democracy and _— thirties and early forties, their counteratthat showed equally that totalitarianism _ tack failed, and the Catholics themselves was evil. Others, such as Percy W. Bridg- _ eventually modified some of their more

man and Stuart A. Rice, admitted that strident positions. there was no ultimate ethical sanction for Finally, the debate suggested the

democracy and suggested only that course that American legal thinking

human experience indicated that the would take in the years after the Second

great majority of men preferred it to |= World War. While the idea of natural law Nazism. Most intellectuals finally had to grew somewhat in importance — and ignore their doubts and the intellectual _ certainly proved useful for such purposes

difficulties that plagued ethical theory as trying war criminals — through the

and in the end simply assert the evil of _Jate forties and early fifties, it died down totalitarianism and the relative goodness _ again and became mainly an isolated and

and desirability of democracy. parochial concept that enjoyed little supAlthough the Catholics in contrast port outside of a few Catholic law

expressed great certainty in the power of _ schools. Where it did have vitality it was

reason to discover ultimate principles, made part of a broader empirical synthethe debate revealed a defensive attitude sis as in the work of F.S.C. Northrop.

on their part that at times reached while ignoring some of its more extreme extreme proportions. In spite of their fer- theoretical tendencies, the profession

vent religious and intellectual convic- generally accepted many of the ideas tions, they realized that they were associated with legal realism. That movefighting a battle against the ever- ment helped establish the importance of strengthening intellectual trends of the factual research in law, the necessity of

past three hundred years. Abstract ratio- —_ empirical studies of the legal process, the

nalism simply could not stand against legitimacy of a more flexible constitu-

the combined forces of pragmatism, sci- _ tional interpretation, and the acceptance

entific empiricism, and modern critical of a pragmatic, operational concept of philosophy. The vitriolic tone and law. In spite of the problems the realists extreme, unfounded accusations made presented, both philosophically and against such movements as legal realism legally, they were pointing toward the showed clearly the sense of intellectual future by suggesting fruitful courses of frustration and institutional anxiety that study and more useful methods of analyunderlay Catholic legal thought in the gis. The alliance the realists helped forge 1930s. The identification of realism and between legal theory and empirical analrelativism with totalitarianism was the ysis fortified the trend toward sociologiground on which the Catholics hoped to _¢al jurisprudence that had begun forty

make their belated victorious stand years before and that was to become a against the intellectual forces of the commonly accepted part of American twentieth century. Though they had law in the years after the Second World some limited success during the time of War. most severe intellectual crisis in the late

Part Twelve

The Regulatory and Welfare State

The following study by the legal business and responsibility for social welscholar Charles Reich is, in a sense, an fare. Agriculture was made a federally obituary for liberal reform and a sweeping managed sector in the 1930s; regional

critique of its consequences. It concerns planning and development emerged,

the effects of the profound transformation under federal auspices; and many key that occurred in the American legal and industries became subject to governmengovernmental systems after 1933. Some of tal control of entry, markets, and prices or

the foundations for this transformation rates. The central government has also were laid much earlier, with the establish- effectively preempted the most flexible

ment of the ‘independent regulatory and productive of revenue sources, the

agencies,” of which the Interstate Com- income tax. Other federal payroll taxes, merce Commission (1887) was the first; financing the social-security system, also nevertheless to a remarkable extent the became a major component of overall tax modern administrative state was the prod- collections. In the Nixon presidency this uct of the Great Depression of the 1930s trend accelerated so rapidly as to become and of the New Deal. The New Deal insti- a quiet (and regressive) revolution in gov-

tuted fundamental revisions of govern- ernment finance. As federal programs mental structure, constitutional doctrine, expanded, both taxes and government socio-economic policy, and consequently spending as a component of national of the power relationships in American income rose dramatically. Since the mid-

society. thirties the national government has been Since 1933 the dramatic shift in real committed to a counter cyclical fiscal polpower within the federal system has icy that uses federal revenues and spendallowed the central government deci- ing as the key instruments for dealing sively to displace the states as the locus with recession and depression. for most major policy decisions. The sum These developments were accompanyof governmental power over the private ied by a shift in the content of constitu-

sector has increased massively as well. tional doctrine, beginning with a

Among the functions assumed by public wholesale reversal by the late 1930s of the authorities and centralized in the national Supreme Court’s position on such critical

government are extensive regulation of issues as the commerce power, federal 375

376 } |

The Regulatory and Welfare State

regulatory power, labor law, and the legit- Further Reading

imate distribution of authority between ,

the states and the central government. Berle, Adolph A. The American Economic The Court has largely validated the whole Republic. New York: Harcourt, Brace, 1965.

range of welfare-state and regulatory-state Boulding, Kenneth E. The Organizational

initiatives. Revolution. New York: Harper & Row, 1953. Charles Reich here assesses these devel- McCloskey, Robert G., ed. Essays in Conopments in the context of concomitant stitutional Law. New York: Alfred A. Knopf,

changes in the private sector. He consid- 1997.

ers how changes in the constitutional ———.. The Modern Supreme Court. Camorder and the American political econ- —-»Ptd8e: Harvard University Press, 1972.

omy have transformed the fundamental McConnell, Grant. Private Power and meaning and functions of private prop- American Democracy. New York: Alfred A.

erty. Revisited in this article are some Knopf, 1966. .

major themes from earlier studies in this Mason, Alpheus T. Security through Freevolume — for example, the interplay of dom: American Political Thought and Pracprivatism, community values, and tice. Ithaca: Cornell University Press, 1955. governmental power and the ideals of the Miller, Arthur Selwyn. The Modern Corlegal progressives who sought a more ega- porate State: Private Governments and the litarian legal system. It is probably fair to American Constitution. Westport, Conn.:

say that the popular, nineteenth-century Greenwood Press, 1976. .

American view of the positive social func- —_—. The Supreme Court and American tions that private property could perform Capitalism. New York: Free Press, 1968. as portrayed by Hurst is not very different Pritchett, C. Herman. The Roosevelt Court:

from Reich’s view. But Reich contends A Study in Judicial P olitics and Values, that, whereas in the earlier era property 1937-1947. New York: Macmillan, 1948.

institutions did provide ‘“‘zones of pri- Scheiber, Harry N. The Condition of

vacy” and protect individuality whatever American F ederalism: An Historian s View. their other failures, today they have been 89th Cong., 2d sess., Senate Committee on overwhelmed by the governmental struc- Government Operations print. Washington,

tures of the regulatory and welfare state. D.C., 1966.

He argues that because of this, and also Shapiro, Martin. The Supreme Court and because of the continuing concentration Administrative Agencies. New York: Free

of power in private hands, new legal con- Press, 1968.

cepts and structures are required to assure , the protection of individuality and personal dignity in modern life. |

Charles A. Reich | The New Property

One of the most important developments The growth of government largess in the United States during the past accompanied by a distinctive system of decade had been the emergence of gov- law is having profound consequences. It ernment as a major source of wealth. Gov- affects the underpinnings -of individualernment is a gigantic siphon. It draws in ism and independence. It influences the

revenue and power and pours forth workings of the Bill of Rights. It has an

wealth: money, benefits, services, con- impact on the power of private interests in tracts, franchises, and licenses. Govern- their relation to each other and to government has always had this function. But ment. It is helping to create a new society. while in early times it was minor, today’s

distribution of largess is on a vast, impe- The Largess of Government

rial scale. The valuables dispensed by govern- THE FORMS OF GOVERNMENT-CREATED

ment take many forms, but they all share WEALTH one characteristic. They are steadily tak-

ing the place of traditional forms of The valuables which derive from relawealth — forms which are held aS private tionships to government are of many property. Social insurance substitutes for kinds. Some primarily concern individusavings; a government contract replacesa _ als, others flow to businesses and organi-

businessman’s customers and good will. zations. Some are obvious forms of The wealth of more and more Americans wealth, such as direct payments of

depends on a relationship to government. money, while others, like licenses and Increasingly, Americans live on govern- franchises, are indirectly valuable.

ment largess — allocated by government }

on its own terms, and held by recipients Income and Benefits For a large

subject to conditions which express ‘“‘the number of people, government is a direct

public interest.”’ source of income although they hold no

public job. Their eligibility arises from

Reprinted, with changes, from Yale Law Journal, 73 legal status. Examples are Social Security (1964), 733-787, by permission of the Yale Law Jour- benefits, unemployment compensation, nal Company and Fred B. Rothman & Company. aid to dependent children, veterans’ bene377

378

Charles A. Reich

fits, and the whole scheme of state and lines, routes to air carriers, certificates to local welfare. These represent a principal oil and gas pipelines, licenses to liquor source of income to a substantial segment stores, allotments to growers of cotton or of the community. Total federal, state, and wheat, and concessions in national parks.

local social-welfare expenditures in 1961 |

were almost fifty-eight billion dollars. Contracts Many individuals and

many more businesses enjoy public gen-

Jobs. More than nine million persons _ erosity in the form of government conreceive income from public funds because tracts. Fifty billion dollars annually flow they are directly employed by federal, from the federal government in the form state, or local government. The size of the of defense spending. These contracts

publicly employed work force has often resemble subsidies; it is virtually

increased steadily since the founding of — impossible to lose money on them. Busin-

the United States, and it seems likely to esses sometimes make the government keep on increasing. If the three to four their principal source of income, and million persons employed in defense many ‘free enterprises’? are set up pri-

_ industries (which exist mainly on govern- marily to do business with the ment funds) are added to the nine million government.

directly employed [by government] it can |

be estimated that 15 to 20 percent of the Subsidies Analogous to welfare paylabor force receives its primary income ments for individuals who cannot manage

from government. independently in the economy are subsidies to business. Agriculture is subsidized

Occupational licenses Licenses are to help it survive against better organized required before one may engage in many (and less competitive) sectors of the econkinds of work, from practicing medicine omy, and the shipping industry is given a

to guiding hunters through the woods. dole because of its inability to compete Even occupations which require little | with foreign lines. Local airlines are also education or training, like that of long- on the dole. So are the other major indus-

shoremen, often are subject to strict tries, notably housing. Still others, such

licensing. Such licenses, which are dis- _as the railroads, are eagerly seeking help. pensed by government, make it possible Government also supports many nonbusifor their holders to receive what is ordi- ness activities in such areas as scientific

narily their chief source of income. research, health, and education. Franchises A franchise, which may be Use of public resources A very large held by an individual or by acompany, is part of the American economy is publicly

a partial monopoly created and handed owned. Government owns or controls out by government, Its value depends hundreds of millions of acres of public largely upon governmental power; by lands valuable for mining, grazing, lum-

limiting the number of franchises, govern- _ bering, and recreation; sources of energy ment can make them extremely remunera- _ such as the hydroelectric power of all tive. A New York City taxi medallion, major rivers, the tidelands reservoirs of which costs very little when originally oil, and the infant giant of nuclear power; obtained from the city, can be sold for routes of travel and commerce such as the over twenty thousand dollars. The reason airways, highways, and rivers; the radiofor this high price is that the city has not —_ television spectrum which is the avenue

issued new transferable medallions for all broadcasting; hoards of surplus

despite the rise in population and traffic. | crops and materials; public buildings and

A television channel, handed out free, can facilities, and much more. These often be sold for many millions. Govern- resources are available for utilization by ‘ment distributes wealth when it dispenses private businesses and individuals; such route permits to truckers, charters to bus use is often equivalent to a subsidy. The

379

The New Property

radio-television industry uses the scarce longer available for individual savings or channels of the air free of charge; electric insurance. The taxpayer is a participant in

companies use publicly owned water public insurance by compulsion, and his

power; stockmen graze sheep and cattle ability to care for his own needs indepenon public lands at nominal cost; ships and dently is correspondingly reduced. Simi-

airplanes arrive and depart from publicly larly, there is no choice about using owned docks and airports; the atomic- public transportation, public lands for energy industry uses government materi- recreation, public airport terminals, or

als, facilities, and know-how, and all are public insurance on savings deposits. In

entitled to make a profit. these and countless other areas, govern-

Services Like resources, government ment is the sole supplier. Moreover, the services are a source of wealth. Some of increasing dominance of scientific techthese are plainly of commercial value; nology, so largely a product of govern-

postal service for periodicals, newspa- ment research and development, pers, advertisers, and mail-order houses; generates an even greater dependence on

insurance for home builders and savings government. , .

banks; technical information for agricul- Dependence creates a Vicious circle of ture. Other services dispensed by govern- dependence. It is as hard for a business to

ment include sewage, sanitation, police give up government help as it is for an and fire protection, and public transporta- individual to live on a reduced income. tion. The communications satellite repre- And when one sector of the economy is sents an unusual type of subsidy through subsidized, others are forced to seek comservice — the turning over of government parable participation. This is true of georesearch and know-how to a quasi-private graphical areas; government contracts can organization. The most important public fundamentally influence the economy of a

service of all, education, is one of the region. It is also true of different compo-

| portation is subsidized, other types of

greatest sources of value to the individual. nents of the economy. If one form of trans-

THE IMPORTANCE OF GOVERNMENT LARGESS transportation may be compelled to seek

, so , , subsidies. When some occupations are nomic life of the nation? In 1961, when class 6 How important is governmentally dis- subsidized, others, which help to pay the pensed wealth in relation to the total eco- bill. find themselves disadvantaged as a

personal income totaled $416,432,-

000,000, government expenditures on all LARGESS AND THE CHANGING FORMS OF

levels amounted to $164,875,000,000. The WEALTH government payroll alone approached $45 billion. And these figures do not take .

account of the vast intangible wealth The significance of government largess

represented by licenses, franchises, ser- is increased by certain underlying changes vices, and resources. Moreover, the pro- in the forms of private wealth in the United

portion of governmental wealth is States. Changes in the forms of wealth are increasing. Hardly any citizen leads his | not remarkable in themselves; the forms life without at least partial dependence on = are constantly changing and differ in every

wealth flowing through the giant govern- culture. But today more and more of our

ment syphon. wealth takes the form of rights or status

In many cases, this dependence is not rather than of tangible goods. An individvoluntary. Valuables that flow from gov- ual’s profession or occupation is a prime ernment are often substitutes for, rather | example. To many others, a job with a par-

than supplements to, other forms of _ ticular employer is the principal form of wealth. Social security and other forms of — wealth. A profession or a job is frequently

public insurance and compensation are far more valuable than a house or bank supported by taxes. This tax money is no account, for a new house can be bought,

380

Charles A. Reich

and a new bank account created, once a apply or to reject the label ‘‘property.”’ profession or job is secure. For the jobless, |§ What is important is to survey — without their status as governmentally assisted or the use of labels — the unique legal system insured persons may be the main source of that is emerging. subsistence. | The automobile dealer’s chief wealth is INDIVIDUAL RIGHTS IN LARGESS

his franchise from the manufacturer which As government largess has grown in gives him exclusive sales rights within a importance, quite naturally there has been certain territory, for itis his guarantee of pressure for the protection of individual income. His building, his stock of cars, his interests in it. The holder of a broadcast organization, and his good will may all be license or a motor-carrier permit or a graz-

less valuable than his franchise. Fran- ing permit for public lands tends to conchises represent the principal asset of sider this wealth his “own” and to seek many businesses: the gasoline station, legal protection against interference with

chain restaurant, motel or drug store, and his enjoyment of it. The development of many other retail suppliers. To the large — individual interests has been substantial, manufacturer, contracts, business arrange- but it has not come easily. ments, and organization may be the most From the beginning, individual rights in valuable assets. The steel company’s rela- largess have been greatly affected by sev-

tionships with coal and iron producers eral traditional legal concepts, each of and automobile manufacturers, and con- which has had lasting significance. struction companies may be worth more

than all its plant and equipment. — Right versus privilege The early law is

The kinds of wealth dispensed by gov- marked by courts’ attempts to distinguish ernment consist almost entirely of those which forms of largess were “‘rights’’ and forms which are in the ascendancy today. which were ‘‘privileges.’’ Legal protection To the individual, these new forms, such of the former was by far the greater. If the as a profession, job, or right to receive holder of a license had a ‘‘right,”’ he might income, are the basis of his various sta- be entitled to a hearing before the license tuses in society, and may therefore be the could be revoked; a “mere privilege”’

possesses. hearing. |

most meaningful and distinctive wealth he might be revoked without notice or

The Emerging System of Law The gratuity principle Government largess has often been considered a “‘gratu-

Wealth or value is created by culture and ity’ furnished by the state. Hence it is said

by society; it is culture that makes a dia- that the state can withhold, grant, or mond valuable and a pebble worthless. revoke the largess at its pleasure. Under Property, on the other hand, is the creation this theory, government is considered to of law. Aman who has property has certain be in somewhat the same position as a pri-

legal rights with respect to an item of vate giver wealth; property represents a relationship , ,

between wealth and its ‘‘owner.’’ Govern- The whole and the parts Related to the ment largess is plainly ‘‘wealth,” but it is gratuity theory is the idea that, since gov-

not necessarily ‘“‘property.”’ , ernment may completely withhold a ben-

Government largess has given rise toa _ efit, it may grant it subject to any terms or distinctive system of law. This system can conditions whatever. This theory is essenbe viewed from at least three perspectives: tially an exercise in logic: the whole power the rights of holders of largess, the powers must include all its parts. of government over largess, and the proce-

dure by which holders’ rights and govern- Internal management Particularly in mental power are adjusted. At this point, relation to its own contracts, government analysis will not be aided by attempting to has been permitted extensive power on the

381

The New Property

theory that it should have control over its license because it confers an exclusive or own housekeeping or internal manage- monopoly position established by government functions. Under this theory, govern- ment. But the courts early took the position

ment is treated like a private business. In that certain types of franchises were

its dealings with outsiders it is permitted ‘‘property’’ protected by the much of the freedom to grant contracts and Constitution.

licenses that a private business would have. Benefits With somewhat greater reluc-

Quite often these four theories are tance, the courts have moved toward a

blurred in a single statement of judicial measure of legal protection for benefits.

attitude. For example: “A taxicabisacom- _ The District of Columbia Court of Appeals

mon carrier and use by it of the public questioned whether Congress could

streets is not a right but a privilege or authorize an administrator to revoke a vetlicense which can be granted on such con- eran’s disability pension without some ditions as the legislature may impose.’’! standards to guide him.* The Supreme But individual interests have grown up Court held that a state cannot deny unem~ nonetheless. The most common forms of | ployment benefits on grounds which interprotection are procedural, coupled with an fere with freedom of religion.

insistence that government action be Contracts Government contracts or unauthorized. Development has varied ™ight seem the best possible example of mainly according to the particular type of type of valuable that no one has any right wealth involved. The courts have most ernment’s manaverial function. But even

, to receive and that represents only the gov-

readily granted protection to those types here. at least o court has sai d that a which are intimately bound up with the w oul d-be contractor mav not be wholl

individual’s freedom to earn a living. They debarred f livibilit y y have been reluctant to grant individual aa nae — a A Ne ; ; of arbitrary government action: “While

rights in tho se types of largess which seem they do not have a right to contract with to be exercises of the managerial functions the United States on their own terms, of government, such as subsidies and gov- appellants do have a right not to be inva-

ernment contracts. : lidly denied equal opportunity under Occupational licenses After some ini- applicable law to seek contracts on govern-

tial hesitation, courts have generally held ment projects.””° a

that an occupational or professional In all the cases concerning individual license may not be denied orrevoked with- Tights in largess the exact nature of the out affording the applicant notice and a government action which precipitates the

hearing. Doctors, lawyers, real estate controversy makes a great difference. A

brokers, and taxi drivers may not be denied controversy over government largess may their livelihood without some minimum arise from such diverse situations as denial

procedure of this sort. of the right to apply, denial of an applica-

| tion, attaching of conditions to a grant,

Drivers’ licenses Licenses not specific- modification of a grant already made, susally tied to a particular occupation, such as pension or revocation of a grant, or some drivers’ licenses, have tosome extent been Other sanction. In general, courts tend to assimilated under the umbrella ofoccupa- afford the greatest measure of protection in tional licenses. New York’s highest court revocation or suspension cases. The theory declared that a driver’s license is “‘of tre- seems to be that here some sort of rights

mendous value to the individual and may have “vested” which may not be taken not be taken away except by due process.? away without proper procedure. On the

, other hand, an applicant for largess is

Franchises A franchise is less of a thought to have less at stake and is there‘natural right’? than an occupational fore entitled to less protection. The mere

382

Charles A. Reich

fact that a particular form of largess is pro- owned factory. Only his right to profits tected in one context does not mean that it and his control over how the job is done

will be protected in all others. distinguish his private status. The taxi

When the public interest demands that driver performs the public service of transthe government take over “property,” the portation (which the government might Constitution requires that just compensa- otherwise perform) subject to regulation tion be paid to the owner. But when largess but with more freedom than the contractor.

is revoked in the public interest, the holder | The doctor serves the public with still ordinarily receives no compensation. For greater freedom. The mother of a child example, if a television station’s license entitled to public aid acts as the state’s were revoked, not for bad behavior on the agent in supporting the child with the part of the operator, but in order to provide funds thus provided, but her freedom is a channel in another locality, or to provide even greater, and the responsibility of her an outlet for educational television, the agency still less defined.

~ holder would not be compensated for its The result of all of this is a breaking loss. This principle applies to government down of distinctions between public and

largess of all types. private and aresultant blurring or fusing of

In addition to being revocable without public and private. Many of the functions compensation, most forms of largess are of government are performed by private subject to considerable limitations on their persons; much private activity is carried use. Social Security cannot be sold or on in a way that is no longer private. transferred. A television license can be transferred only with FCC permission. The LARGESS AND THE POWER OF GOVERNMENT

possessor of a grazing permit has no right Affirmative powers When government to change, improve, or destroy the land- — national, state, or local — hands out scape. Use of most largess is limited to spe- something of value, whether a relief check

cified purposes. Some welfare grants, for or a television license, government’s example, must be applied to support power grows forthwith; it automatically

dependent children. gains such power as is necessary and

The most significant limitation on use is proper to supervise its largess. It obtains more subtle. To some extent at least, the new rights to investigate, to regulate, and holder of government largess is expected to punish. This increase in power is furthto act as the agent of ‘‘the public interest”’ ered by an easy and wide-ranging concept rather than solely in the service of his own of relevance. A government contractor self-interest. The theory of broadcast finds that he must comply with wage-hour licensing is that the channels belong to the and child-labor requirements. Television public and should be used for the public’s and radio licenses learn that their possible benefit, but that a variety of private opera- violation of the antitrust laws or allegedly tors are likely to perform this function misleading statements to the FCC are relemore successfully than government; the vant to their right to a license. Doctors find holder of a radio or television license is they can lose their licenses for inflating

therefore expected to broadcast in ‘‘the bills that are used as a basis for claims public interest.”” The opportunity for pri- against insurance companies in accident vate profit is intended to serve as a lure to cases, and theaters are threatened with loss

make private operators serve the public. of licenses for engaging in illegal ticketThe “‘mix”’ of public and private, and the sale practices. The New York State Board

_ degree to which the possessor acts as the of Regents includes in its definition of government’s agent, varies from situation ‘unprofessional conduct” by doctors, dento situation. The government contractor is tists, and other licensed professions any explicitly the agent of the government in discrimination against patients or clients what he does; in theory he could equally on the basis of race, color, or creed. Real well be the manager of a government- estate brokers can be suspended for taking

383

The New Property

advantage of racial tensions by the practice driver’s license of any motorist convicted called ‘“‘blockbusting.’”’ California has used under the Smith Act of advocating the its power over the privilege of selling alco- overthrow of the government.

holic beverages in order to compel The restrictions which derive from these licensed establishments to cease expanded notions of relevance are enforce-

discriminating. | able not merely by withholding largess,

One of the most significant regulatory but also by imposing sanctions. Along by-products of government largess is with largess goes the power to punish new power over the recipients’ ‘‘moral charac- crimes. Misuse of the gift becomes crimi-

ter.’ Some random illustrations will sug- nal, and hence new standards of lawful gest the meaning and application of this behavior are set: government can make it a phrase. The District of Columbia denied a crime to fail to spend welfare funds in such

married man in his forties a permit to a manner as accords with the best interests operate a taxi partly because when he was of the children.

a young man in his twenties, he and a Government largess not only increases woman had been discovered about to have the legal basis for government power; it sexual intercourse in his car.?7 Men with increases the political basis as well. When

criminal records have been denied an individual or a business uses public

licenses to work as longshoremen and money or enjoys a government privilege or chenangoes and prevented from holding occupies part of the public domain, it is union office for the same reason. A license easier to argue for a degree of regulation to operate a rooming house may be refused which might not be accepted if applied to

for lack of good character. businesses or individuals generally.

Political activities are also regulated by Objections to regulation fade, whether in use of largess power. The Hatch Act for- the minds of the general public or legal

bids federal employees to engage in politi- scholars, before the argument that governcal activities on pain of losing their jobs; ment should make sure that its bounty is the act was also made applicable to state used in the public interest. Benefits, subsiemployees engaged in activities aided by dies, and privileges are seen as “‘gifts’’ to

the federal government. But political be given on conditions, and thus the politiactivities thought to be subversive or com- cal and legal sources of government power

munistic have been the chief area of con- merge into one. cern. One of the earliest illustrations is the

Emergency Relief Appropriation Act, The magnification of governmental which sought to prevent any member of power by administrative discrethe Communist Party or Nazi Bund from tion Broad as is the power derived from getting work under the act. Another exam- largess, it is magnified by many adminis-

ple is the effort — ultimately frustrated by trative factors when it is brought to bear on the courts — to bar communists or subver- a recipient. First, the agency granting gov-

sives from occupying public housing. ernment largess generally has a wide meaMembersnip in the Communist Party or sure of discretion to interpret its own subversive organizations has been consid- power. Second, the nature of administra-

ered relevant to the right to pursue a tive agencies, the functions they combine,

number of important occupations and pro- and the sanctions they possess give them

fessions, including that of lawyer, radio- additional power. Third, the circum-

telegraph operator, and port worker. Nor stances in which the recipients find them-

does the list stop at occupations. Ohio selves sometimes make them abettors,

required a loyalty oath to receive unem- rather than resisters, of the further growth ployment compensation. For a time a loy- of power. alty oath was required under the National The legislature generally delegates to an Defense Education Act. New York has pro- administrative agency its authority with vided for the mandatory revocation of the respect to a given form of largess. In this

384

Charles A. Reich

very process of delegation there can be an in some way and the greater the discretion

enlargement of power. The courts allow to forgive or to punish. But even if a dis-

the agencies a wide measure of discretion pensing agency is self-restrained and scru-

to make policy and to interpret legislative pulous beyond the requirements of policy. Sometimes a legislature gives the statutes, the function of dispensing will | agency several different, possibly conflict- make its power grow. The dispensing of ing, policies, allowing it (perhaps uninten- largess is a continuing process. The threat

tionally) to enforce now one and now _ of an unfavorable attitude in the future another. There is little if any requirement should be sufficient persuasion for today. of consistency or adherence to precedent, The recipients of largess themselves add and the agency may, instead of promulgat- to the powers of government by their ing rules of general application, make and uncertainty over their rights, and their change its policies in the process of case- efforts to please. Unsure of their ground, to-case adjudication. For example, New they are often unwilling to contest a deci-

Jersey’s Waterfront Commission has sion. The penalties for being wrong, in power “‘in its discretion” to deny the right terms of possible loss of largess in the

to work to any longshoreman if he is a per- future, are very severe.? Seeking to stay on son ‘‘whose presence at the piers or other the safe side of an uncertain and often un-

waterfront terminals in the Port of New knowable line, people dependent on York is found by the commission on the largess are likely to eschew any activities basis of the facts and evidence before it, to that might incur official displeasure. Bene-

constitute a danger to the public peace or ficiaries of government bounty fear to

: safety.”’ The discretion of an agency is offend, lest ways and means be found in

even broader and even less reviewable the obscure corners of discretion to deny when the subject matter is highly techni- these favors in the future. cal. In such fields, which are increasing in ,

number, ‘‘experts”’ or professionals come LARGESS AND PROCEDURAL SAFEGUARDS

tocoufine within legislatively fixed limits, ,. TB Procedural law of government Discretion as to e vrorcement or punish- _ largess is as distinctive as the substantive.

: In addition to the general law governing

ment 1s one of ~the greatest of agency the grant and revocation of largess, there powers. A licensing agency often has are special aspects of unusual interest: the

power to choose between forgivene SS, SUIS- power to conduct trials of persons for

license f and Penne revocation of a alleged violations of law, and the authority Most dispensing agencies possess the to apply sanctions and punishments.

power of delay. They also possess the Procedures in general The granting,

power of investigation and harassment; regulation, and revocation of government

they can initiate inquiries which will largess are carried on by procedures

prove expensive and embarrassing to an which, in varying degrees, represent shortapplicant. Surveillance alone can make a cuts that tend to augment the power of the recipient of largess uncomfortable. Agen- grantor at the expense of the recipient. In cies have so many criteria to use, so many the first place, the tribunal is likely to be an

available grounds of decision, and so arm of the granting agency rather than

much discretion that they, like the FCC, independent and impartial. For example,

can usually find other grounds to accom- when disputes arise over government conplish what they cannot do directly. This is tracts, the tribunal may turn out to be the

a temptation to the honest but zealous government contracting officer, himself a

administrator, and an invitation to the offi- party to the dispute, followed by a series of

cial who is less than scrupulous. In addi- contract appeals boards likewise com-

tion, the broader the regulation, the greater posed of government contracting officials.

the chance that everyone violates the law More commonly the initial tribunal is a

, 385

The New Property

hearing officer, but the final decision is by The officer found him guilty, and his

the dispensing agency itself. Thus a charge license was revoked. The New York Court that a television licensee is violating the of Appeals subsequently held that the pro-

terms of its license is ultimately passed cedures used by the police violated due upon by the FCC itself. A pilot can be sus- process, but the court seemed to agree that

pended by the CAB, which previously the police could ‘‘try” taxi drivers if they investigated the accident out of which the observed better procedures.?° suspension resulted, and earlier found ina Administrative ‘trials’ are not even lim‘probable cause’’ investigation and hear- ited to conduct that might violate some

ing that the accident was due to pilot law. Agencies can deny government

error. largess for ‘“‘bad”’ conduct which is lawful. Sometimes there is no hearing at all. For This often happens when a license is

example, the SEC has been upheld in sus- denied because of ‘‘bad character.’’ Many pending, without a hearing, a_ broker- largess-dispensing agencies are concerned dealer license for alleged violations. with character — from the SEC to state box-

Driver’s licenses are also sometimes sus- ing commissions. The entire federal loy- ,

pended without a hearing. alty-security program for public Decisions concerning government employees involves trials of character.

largess are not always subject to effective Here the ‘‘gift’’ of a public job has been the review in the courts. An application for a justification for a process by which count-

savings-and-loan charter can be granted or less individuals have been ‘“‘tried” for denied without judicial review. The mat- ‘offenses’? which vary from conduct ter rests in the “vast discretion” of a federal approaching treason to the most trivial board. A local agricultural committee, departure from orthodoxy. These security exercising authority under the federal soil- trials and the character investigations bank subsidy program, has virtually unre- which are made for innumerable licenses

viewable authority to find a farmer in and permits attempt to search out every

violation of the rules of the program, mak- crevice and recess of an individual’s life. ing him subject to statutory forfeitures. At The agencies try, not an offense, but the present there is a trend toward more judi- whole of a man, his strengths and weak-

cial review, but the important question is nesses, his moments of honor and of

what kind of review; review limited to con- temptation.! stitutional or jurisdictional questions may

prove inadequate to curb possible agency New and unusual punish-

abuses. oe ments Administering largess carries with it not only the power to conduct Trial Violations of law are normally trials, but also the power to inflict many

determined by courts. But in dispensing sorts of sanctions not classified as criminal largess government has not always been punishments. The most obvious penalty is willing to rely on courts to determine simply denial or deprivation of some form whether laws have been violated. In an of wealth or privilege that the agency disincreasing number of cases it has under- penses. How badly this punishment hurts taken to make such determinations inde- depends upon how essential the benefit is pendently ... The CAB can take away a to the individual or business affected. The pilot’s license on the basis of an agency loss of some privileges or subsidies may be “trial” proving that. he violated regula- quite trivial. But for the government contions. The FCC had “‘found”’ that an appli- tractor placed on a blacklist the consecant for a broadcast license was guilty of an quences may be financial ruin if the attempt to deceive the commission. A New government is one of its major customers. York City taxicab driver was brought The television station that loses its license before a police captain and charged with _ is out of business; so is the doctor who having withheld change from a passenger. loses his medical license.

386

Charles A. Reich

Although the denial of benefits is con- The well-known episode when the large sistently held not to be penal in nature, it is steel companies were forced to rescind a perfectly clear that on occasion the govern- price rise, partly by the threat of loss of ment uses this power as a sanction. The government contracts, illustrates this. Per-

FCC has denied a radio or television haps the most elaborate and onerous regu‘license as a sanction for the applicant’s lation of businesses with government misrepresentations to the commission. contracts is the industrial security system Government contractors who are guilty of which places all employees in defense undesirable conduct may be officially industries under government scrutiny and ‘‘debarred”’ from contracting for a speci- subjects them, even high executives, to fied term of years. Persons guilty of prior dismissal if they fail to win government crimes may be disqualified from office in approval. waterfront unions. But denial of benefits Universities also feel the power of govby no means exhausts the list of sanctions ernment largess. Research and develop-

available to government. Severe harm can ments grants to universities tend to

be inflicted by adverse publicity resulting influence the direction of university activfrom investigations, findings of violation, ities, and in addition inhibit the university

blacklisting, or forfeitures for cause. A from pursuing activities it might otherstriking instance is the SEC practice, wise undertake. In order to qualify for govupheld by the courts, of placing alleged ernment contracts, Harvard University

violators of certain of its regulations on a = was required, despite extreme reluctance, public blacklist. Forfeitures are imposed to report the number of Negroes employed under agricultural stabilization programs. in each department. The university kept The mere pendency of proceedings may be no such information and contended that

harmful, especially if accompanied by gathering it would emphasize the very costly and harassing investigation and racial distinctions that the government

interminable delay. was trying to minimize. Nevertheless, the university was forced to yield to the govThe Public-Interest State ernment’s demand. What are the consequences of the rise of Individuals are also subject to great presgovernment largess and its attendant legal ohvat Dr. Edward K. Bar sky, a New York system? What is the impact on the recipi- ome ch and surgeon since 1919, was for

ent, on constitutional guarantees of lib- eh Chalrman of the Jom nti-Fascist erty, on the structure of power in the e os ieee a wae In 1946 he was Suni

nation? It is important to try to picture the mone vetore t ° Ho use Committee on ,

; ; ; ; Un-American Activities. In the course of

society that is emerging, and to seek its hi ‘nation he refused fit

underlying philosophy. The dominant us sl eroun ds. © Te Atice » OD is of the theme, as we have seen, is ‘‘the public ona _Broun’’s, fo produce records ot the interest,’ and out of it there grows the organization s contributions and expendi-

““public-interest state.” tures. For this refusal he served six months

in jail for contempt of Congress. Thereafter the New York State Education Department

THE EROSION OF INDEPENDENCE filed a complaint against him under a provision of law making any doctor convicted

The recipient of largess, whether an of a crime subject to discipline. Although organization or an individual, feels the — there was no evidence in any way touching government’s power. The company thatis Dr. Barsky’s activities as a physician, the heavily subsidized or dependent on gov- department’s Medical Grievance Commiternment contracts is subjected to an added — tee suspended his medical license for six

amount of regulation and inspection, | months. The New York courts upheld the sometimes to the point of having resident | suspension. government officials in its plant. And it is If the businessman, the teacher, and the subject to added government pressures. professional man find themselves subject

: 387 | The New Property to the power of government largess, the have no standards to guide him. Nor has man on public assistance is even more the commissioner limited himself to denidependent. Welfare officials, often with als for bad character. He has used his the best of motivations, impose conditions power of revocation to regulate his licen-

intended to better a client, which some- sees in many ways. He threatened to

times are a deep invasion of his freedom of revoke the licenses of theaters if he found action. In a memorable case in New York, them accepting kickbacks on tickets. He an old man was denied welfare because he revoked the licenses of three of New York’s insisted on living under unsanitary condi- eight dance halls that provide hostesses tions, sleeping in a barn in a pile of rags. and initiated proceedings against others,

The court’s opinion expresses a charac- charging that they were ‘lewd’ and

teristic philosophy: “offensive to public decency.”’

Vast discretion tends to corrupt. The

Appellant also argues that he has a right to New York State Liquor Authority, having live as he pleases while being supported by the power to grant valuable liquor licenses public charity. One would admire his inde- to a favored few, having inadequately pendence if he were not so dependent, but he objective standards by which to make the has no right to defy the standards and con- choice, and operating in secret, fell into a ventions of civilized society while being sup- pattern of corruption in which it would

ported at public expense .. . dispense its favors only in return for bribes It is true, as appellant argues, that the hardy and pay-offs, refusing to grant privileges to pioneers of our country slept in beds no better those who were too honest, too ignorant, or

than the one he has chosen. But, unlike the too poor to play its game. Thus a dispensappellant, they did it from necessity, and ing agency of government became little unlike the appellant, they did not call upon better than a shakedown racket. the public to support them, while doing it. PRESSURES ACAINST THE BILL OF RIGHTS

To envision how sweeping the powers The chief legal bulwark of the individderived from government largess can ual against oppressive government power become, one may turn to New York City, is the Bill of Rights. But government where the Commissioner of Licenses holds largess may impair the individual’s enjoy-

sway over a long list of gainful employ- ment of those rights. A radio-operator’s ments. With broad discretion, he dis- license was denied by the FCC because the

penses and revokes licenses for applicant pleaded the privilege against exhibitions and performances, billiardand ~ self-incrimination. Pressures are also

pool tables, bowling alleys, miniature golf, applied against the protection of the | sidewalk cafes and stands, sightseeing |§ Fourth Amendment.

guides, street musicians, public carts, In the case of many public-assistance

expressmen, porters, junk dealers, second- programs, a power to make unannounced hand dealers, pawnbrokers, auctioneers, searches of recipients’ premises is asserted

laundries, wardrobe concessionaires, by administrators.

locksmiths, masseurs, bargain sales, bath- —

house keepers, rooming houses, barbers, In the sample of active cases studied some garages, refuse removal, cabarets, coffee instances were reported in which the specialhouses, and cannon firing. The license investigation teams in a surprise visit in the commissioner has used his broad powers middle of the night pushed past the one who to deny licenses to many persons on the answered the door and looked in the closets basis of “bad character.’”’ A parking-lot and under the bed for evidence of male occulicense was denied to an applicant for fail- pancy. One family interviewed in this study ure to disclose arrests for book-making complained of repeated harassment of this which had occurred some twelve years kind. The family consisted of a mother, her previously. Whatever the merits of indi- teenage son and younger daughter. The vidual denials, the commissioner seems to mother and daughter slept in the combina-

388

Charles A. Reich tion living room, dining room and bedroom, expenses of the defense; an individual may and the son slept in a small converted closet find revocation proceedings are enough to

off the bedroom. One night they were awa- send him to the poorhouse regardless of kened at three o’clock in the morning by loud the outcome. And the large and the small knocking at their door. The son went to the are not always treated alike. For example, _ door, which opened into the bedroom occu- small firms which deal with the governpied by the mother and daughter. Two men ment are sometimes placed on a blacklist pushed past him without identifying them- because of delinquencies in performance, selves as investigators from the Department thus losing out on all government conof Public Aid, and said they were looking for tracts, but giant contractors who are guilty the father who was reported to have returned of similar delinquencies are apparently

home. Without apology they left, but not subject to this drastic punishment.

returned several weeks later at one o’clock in Similarly, regulation of taxicabs tends to

the morning, repeating the same perform- be harder on the individual owner or ance, again without finding their man. This driver, who may lose his driver’s license,—

experience has had an unnerving effect on while little harm comes to the company

the entire family. controlling a fleet, which may lose drivers

, | but not its precious franchise. ,

Largess also brings pressure against All these inequalities modify somewhat First Amendment rights. The Pacifica the simple picture of a government-private Foundation was for a long period in dichotomy. But a second modification is danger of losing its three radio licenses required: government and the private secbecause of ‘‘controversial’’ broadcasts, tor (or a favored part of it) are often - including ‘‘extreme”’ political views. For partners rather than opposing interests. an extended period the FCC delayed action The concept of partnership covers many on the foundation’s application for re- quite different situations. Sometimes govnewals. Then the FCC demanded that the ernment largess serves to aid the private

foundation’s directors, officers, and objectives of an industry, as when governmangers give answers disclosing whether ment supplies grazing land to stockmen, they were, or had been, members of the timber to the lumber industry, and scienCommunist Party or of any group advocat- tific know-how to the private investors in

ing or teaching the overthrow of govern- Telstar. A second type of partnership

ment by force. The foundation refused to exists where governmental action protects answer. Eventually the FCC renewed the the recipient of largess from adverse forces

licenses. with which he would otherwise have to FROM GOVERNMENT POWER TO PRIVATE. contend; this is illustrated by the defense

POWER contract, its virtual guarantee against , losses due with to most economic or manageInequalities lie deep in the administra- |§ ment factors. The Atomic Energy Commis-

tive structure of government largess. The sion provides insurance against public whole process of acquiring it and keeping liability due to negligence. Just as freit favors some applicants and recipients quently, government largess offers protec-

over others. The administrative process is tion against the disadvantages of

characterized by uncertainty, delay, and competition. ICC motor-carrier regulation

inordinate expense; to operate within it provides partial monopolies for each

requires considerable know-how. All of trucker. CAB routes give partial monopothese factors strongly favor larger, richer, lies to airlines. Professional or occupamore experienced companies or individu- tional licensing limits competition and als over smaller ones. Only the most secure adds a tone of respectability and reliability

can weather delay or seemingly endless as well. Often the leaders in seeking reguuncertainty. A company accused of misus- lation have been the persons affected, and ing a license can engage counsel to fight not government or the general community; the action without being ruined by the the professional and occupational groups

389

The New Property

want government protection just as the philosophy that unites them. This is the property owner wants zoning. Sometimes doctrine that the wealth that flows from licensing is a particularly obvious cover —_ government is held by its recipients condi-

for monopoly. An ordinance in Seattle lim- tionally, subject to confiscation in the ited to a handful the number of persons or interest of the paramount state. Just as the

firms who could be licensed to operate feudal system linked lord and vassal

juke boxes, but allowed each licensee to through a system of mutual dependence, have a large number of juke boxes in dif- obligation, and loyalty, so government ferent establishments; this effectively res- largess binds man to the state — and, it tricted the business to a small but highly may be added, loyalty or fealty to the state privileged group. The partnership of gov- is often one of the essential conditions of ernment and private enterprise may give modern tenure. In the many decisions takfurther protection — not merely from the ing away government largess for refusal to

consequences of competition, but also sign loyalty oaths, belonging to ‘‘subver- . from the legal consequences of eliminat- sive’? organizations, or other similar ing competition. Some privilege-dispens- srounds, there is more than a suggestion of ing agencies can exempt their clients from the condition of fealty demanded in older

the antitrust laws, and, like the Maritime times. Board, use this power in connection with The comparison to the general outlines the grant of franchises to make lawful all of the feudal system may best be seen by

sort of anticompetitive practices that oth- recapitulating some of the chief features of

erwise would violate the Sherman Act. government largess. (1) Increasingly we

The federal government’s role in defense turn over wealth and rights to government,

research and development has created which reallocates and redistributes them new forms of partnership. Substantial sec- in the many forms of largess; (2) there is a tors of the economy become committed to. merging of public and private, in which a system of government contracting in lines of private ownership are blurred; (3) which both the contractors and the politi- the administration of the system has given cians have a tremendous stake in the con- rise to special laws and special tribunals

tinuance of the system. — outside the ordinary structure of governIn any society with powerful or domi- ment; (4) the right to possess and use gov-

nant private groups, it is not unexpected ernment largess is bound up with the

that governmental systems of power will recipient’s legal status; status is both the be utilized by private groups. Hence the basis for receiving largess and a consefrequency with which regulatory agencies quence of receiving it; hence the new are taken over by those they are supposed wealth is not readily transferable; (5) indi-

to regulate. Significantly, most of these viduals hold the wealth conditionally agencies are also the chief federal dis- rather than absolutely; the conditions are pensers of largess. They quarrel with the usually obligations owed to the governindustries they regulate, but seen in a ment or to the public and may include the larger perspective these quarrels are all in obligation of loyalty to the government;

the family. In sum, the great system of the obligations may be changed or power created by government largess is a increased at the will of the state; (6) for ready means to further the interests of cer- breach of condition the wealth may be for-

tain private groups and not merely an feited or escheated back to the governadvance in the position of government ment; (7) the sovereign power is shared over what is ‘private’ in society as a with large private interests; (8) the object

whole. , | of the whole system is to enforce “‘the pub-

, lic interest” — the interest of the state or

society or the lord paramount — by means |

THE NEW FEUDALISM of the distribution and use of wealth in The characteristics of the public-interest such a way as to create and maintain state are varied, but there is an underlying dependence.

390

Charles A. Reich

If the day comes when most private own- Thus, property performs the function of

ership is supplanted by government maintaining independence, dignity, and largess, how then will governmental pluralism in society by creating zones

power over individuals be contained? = within which the majority has to yield to What will dependence do tothe American the owner. Whim, caprice, irrationality, character? What will happentotheConsti- and ‘‘antisocial” activities are given the tution, and particularly the Bill of Rights, |= protection of law; the owner may do what if their limits may be by-passed by pur- all or most of his neighbors decry. The Bill

_ chase, and if people lack an independent of Rights also serves this function, but base from which to assert their individual- — while the Bill of Rights comes into play

ity and claim their rights? Without the only at extraordinary moments of conflict security of the person that individual _ or crisis, property affords day-to-day prowealth provides — and that largess failsto tection in the ordinary affairs of life. provide — what, indeed, will we become? Indeed, in the final analysis, the Bill of

Property and the Public Interest: Rights depends upon the existence of pri-

_ vate property. Political rights presuppose

An Old Debate Revisited that individuals and private groups have

. ; ; the will and the means to act indepenbe pubvic-inter est state, as visualizes dently. But so long as individuals are motiabove, representsover 1 One private sense the trilproperty. p- vated largely by self-interest, their of society This , ; ; triumph is the end point of a great and nec- well “being _must first be indep endent. tf form. But somehow Civil liberties must have a basis in prop-

acataeeh decree aired tears ° erty or bills of rights will not preserve the result is different from what the them

reformers wanted. Somehow the idealistic p " , ‘cht put b a t of the public interest hasconstruction sum- Toperty 1s by not asociety. natural rignt concep pub” deliberate If such moned upan a doctrine monstrous andexist, t gtg ge a ; gs institution did not it qs would be oppressive. It is time to take another look atorder hs to have the , . necessary to create it in

private property and at the ‘‘public inter- kind of societ ‘cshtoh Th ,;

est’”’ philosophy that dominates its modern iy Or society we wisi to have, 2 fe major bstitute, the largess of government. Hy cannot be expected, on specific ISSUES,

su , 8 8 to yield its power to a minority. Only if the PROPERTY AND LIBERTY | minority’s will is established as a general principle can it keep the majority at bay in , Property is a legal institution the a given instance. Like the Bill of Rights, essence of which is the creation and pro- property represents a general, long-range

tection of certain private rights in wealth — protection of individual and private inter-

of any kind. The institution performs ests, created by the majority for the ulti-

many different functions. One of these mate good of all.

functions is to draw a boundary between Today, however, it is widely thought public and private power. Property draws that property and liberty are separable a circle around the activities of each pri- things; that there may, in fact, be conflicts vate individual or organization. Within between ‘property rights” and “personal that circle, the owner has a greater degree rights.’’ Why has this view been accepted? of freedom than without. Outside, he must The explanation is found at least partly in

justify or explain his actions,andshowhis the transformations which have taken authority. Within, he is master, and the place in property. state must explain and justify any interfer- During the industrial revolution, when ence. It is as if property shifted the burden property was liberated from feudal

of proof; outside, the individual has the _ restraints, philosophers hailed property as burden; inside, the burden is on govern- __ the basis of liberty and argued that it must ment to demonstrate that something the _ be free from the demands of government

owner wishes to do should not be done. society. But as private property grew, so

391

The New Property

did abuses resulting from its use. In a defense of private property, it was natural crowded world a man’s use of his property for the reformers to attack too broadly. |

increasingly affected his neighbor, and The reform took away some of the power |

one man’s exercise of a right might of the corporations and transferred it to | seriously impair the rights of others. Prop- § government. In this transfer there was _ erty became power over others; the farm much good, for power was made respon- ~ landowner, the city landlord, and the sive to the majority rather than to the arbiworking man’s boss were able to oppress __ trary and selfish few. But the reform did their tenants or employees. Great aggrega- not restore the individual to his domain. tions of property resulted in private con- § What the corporation had taken from him, trol of entire industries and basic services the reform simply handed on to governcapable of affecting a whole areaorevena ment, and government carried further the nation. At the same time, much private powers formerly exercised by the corporaproperty lost its individuality and ineffect | tion. Government as an employer, or as a became socialized. Multiple ownership of | dispenser of wealth, has used the theory corporations helped to separate personal- _ that it was handing out gratuities toclaima

ity from property, and property from managerial power as great as that which

power. When the corporations began to _ the capitalists claimed. Moreover the corstop competing, to merge, agree,and make __ porations allied themselves with, or actumutual plans, they became private govern- _ ally took over, part of government’s system ments. Finally, they sought the aid and _—_ of power. Today it is the combined power

partnership of the state, and thus by their of government and the corporations that

own volition became part of public gov- _ presses against the individual. ,

ernment. These changes led to a move- From the individual’s point of view, it is ment for reform which sought to limit not any particular kind of power, but all

arbitrary private power and protect the — kinds of power, that are to be feared. This is common man. Property rights were con- _ the lesson of the public-interest state. The sidered more the enemy than the friend of | mere fact that power is derived from the liberty. The reformers argued that property | majority does not necessarily make it less

must be separated from personality. oppressive. Liberty is more than the right During the first half of the twentieth cen- to do what the majority wants, or to do tury, the reformers enacted into law their — what is ‘“‘reasonable.”’ Liberty is the right to

conviction that private power was achief defy the majority and to do what is unreaenemy of society and of individual liberty. sonable. The great error of the public-inter-

Property was subjected to ‘‘reasonable’”’ est state is that it assumes an identity limitations in the interests of society. The | between the public interest and the inter-

regulatory agencies, federal and state, est of the majority.

were born of the reform. In sustaining The reform, then, has not done away

these major inroads on private property, with the importance of private property. the Supreme Court rejected the older idea § More than ever the individual needs to thet property and liberty were one, and possess, in whatever form, a small but sovwrote a series of classic opinions uphold- ereign island of his own. If individualism ing the power of the people toregulateand and pluralism are to be preserved, this

limit private rights. must be done, not by marching backwards, The struggle between abuse and reform __ but by building these values into today’s

made it easy to forget the basic importance society. If public and private are now of individual private property. The blurred, it will be necessary to draw anew defense of private property was almost zone of privacy. If private property can no entirely a defense of its abuses — an attempt longer perform its protective functions, it

to defend, not individual property, but will be necessary to establish institutions arbitrary private power over other human to carry on the work that private property beings. Since this defense was cloaked ina once did but cannolongerdo.

392

Charles A. Reich

In these efforts government largess must attached to receipt, ownership, and use play a major role. As we move toward a depend not on where property came from, welfare state, largess will be an ever more but on what job it should be expected to important form of wealth. And largess is a perform. Thus in the case of government vital link in the relationship between the largess, nothing turns on the fact that it government and private sides of society. It orginated in government. The real issue is

is necessary, then, that largess begintodo how it functions and how it should

the work of property. function. - The chief obstacle to the creation of pri-

vate rights in largess has been the fact that | CONSTITUTIONAL LIMITS

it is orginally public property, comes from

the state, and may be withheld completely. The most clearly defined problem

But this need not be an obstacle. Tradi- | posed by government largess is the way tional property also comes from the state, it can be used to apply pressures against

and in much the same way. Land, for ' the exercise of constitutional rights. A example, traces back to grants from the first principle should be that government _ sovereign. In a less obvious sense, per- must have no power to “buy up” rights , sonal property also stems from govern- guaranteed by the Constitution. It should ment. Personal property is created by law; not be able to impose any condition on it owes its origin and continuance to laws __ largess that would be invalid if imposed supported by the people asa whole. These on something other than a “gratuity.”’ laws “give” the property to one who per- Thus, for example, government should

forms certain actions. not be able to deny largess because of Like largess, real and personal property invocation of the privilege against

were also originally dispensed on condi- __ self-incrimination.

tions and were subject to forfeiture if the The problem becomes more compliconditions failed. The conditions in the cated when a court attempts, as current sovereign grants, such as colonization, doctrine seems to require, to “‘balance”’ the were generally made explicit, and so was deterrence of a constitutional right against the forfeiture resulting from failure to ful- some opposing interest. In any balancing fill them. In the case of the Preemption and process, no weight should be given to the Homestead Acts, there were also specific | contention that what is at stake is a mere conditions. Even now land is subject to for- gratuity. It should be recognized that pres-

feiture for neglect; ifitis unused itmay be sure against constitutional rights from deemed abandoned to the state or forfeited denial of a ‘‘gratuity’”’ may be as great or

to an adverse possessor. In a very similar greater than pressure from criminal punway, personal property may be forfeited by | ishment. And the concept of the public abandonment or loss. Hence, all property interest should be given a meaning broad might be described as government largess, enough to include general injury to indegiven on condition and subject to loss. pendence and constitutional rights. It is If all property is government largess, not possible to consider detailed problems why is it not regulated to the same degree here. It is enough to say that government as present-day largess? Regulation of |= should gain no power, as against constituproperty has been limited, not because tional limitations, by reason of its role as a society had no interest in property, but dispenser of wealth.

because it was in the interest of society that SUBSTANTIVE LIMITS , property be free. Once property is seen not

as a natural right but as a construction - Beyond the limits deriving from the designed to serve certain functions, then Constitution, what limits should be

its origin ceases to be decisiveindetermin- imposed on governmental power over

ing how much regulation should be largess? Such limits, whatever they may

imposed. The conditions that can be _ be, must be largely self-imposed and self-

393

The New Property

policed by legislatures; the Constitution A final limit on substantive power, one sets only a bare minimum of limitationson that should be of growing importance, legislative policy. The first type of limit might be a principle that policy-making should be on relevance. It has proved pos- authority ought not to be delegated to sible to argue that practically anything in. essentially private organizations. The the way of regulation is relevant to some increasing practice of giving professional

legitimate legislative purpose. But this associations and occupational organizadoes not mean that it is desirable for legis- tions authority in areas of government latures to make such use of their powers. largess tends to make an individual subject Courts sometimes manage, by statutory ~— to a guild of his fellows. A guild system,

construction, to place limits on relevance. when attached to government largess, One example is the judicial reaction to adds to the feudal characteristics of the

attempts to ban ‘“‘disloyal tenants’? from system. | government-aided housing projects. The

Wisconsin Court said: ‘‘Counsel for the PROCEDURAL SAFEGUARDS

detendent Authority have failed to point Because itis so hard to confine relevance out to this court how the occupation ofany —_and discretion, procedure offers a valuable

, units of a federally aided housing project —_ means for restraining arbitrary action. This by tenants who may be members of asub- — was recognized in the strong procedural versive organization threatens the success- emphasis of the Bill of Rights, and it is ful operation of such housing projects.”"* —_ being recognized in the increasingly proIt is impossible to confine the concept of — Gedural emphasis of administrative law. relevance. But legislatures should strive The law of government largess has devel-

for a meaningful, judicious concept of rele- oped with little regard for procedure. vance if regulation of largess is not to _ Reversal of this trend is long overdue.

become a handle for denial, regulatingrevocation, everything . ; and else. The grant, Besides relevance, a second important administration of all types of government limit on substantive power might be con- largess should be subject to scrupulous cerned with discretion. To the extent pos- observance of fair pr ocedures. Action

sible, delegated power to make rules ought should be open to hearing and contest and to be confined within ascertainable limits, based Mper 3 record subject to judicial and regulating agencies should not be review. The denial of any form of privilege assigned the task of enforcing conflicting or benefit on the basis of undisclosed rea-

policies. Also, agencies should be sons should no longer be tolerated. Nor

enjoined to use their powers only for the should the same person sit as legis lator, purposes for which they were designed. In prosecutor, judge, and jury, combining all a perhaps naive attempt to accomplish the functions of government in such a way

this, Senator Lausche introduced a bill to aa make fairn es virtually impossible.

prohibit United States government con- q ere 18 T1O justification for the survival of tracting officers from using their contract- arbitrary methods where valuable rights ing authority for purposes of duress. This are at stake. bill, in its own words, would prohibit offi- From LARCESS TO RICHT cials from denying contracts, or the right to

bid on contracts, with the intent of forcing The proposals discussed above, howthe would-be contractor to perform or _ ever salutary, are by themselves far from refrain from performing any act which adequate to assure the status of individual such person had no legal obligation to per- man with respect to largess. The problems form or not perform. Although this bill go deeper. First, the growth of government might not be a very effective piece of legis- power based on the dispensing of wealth

lation, it does suggest a desirable must be kept within bounds. Second, there

objective. must be a zone of privacy for each individ-

394

Charles A. Reich

ual beyond which neither government nor the individual, to rehabilitate him where private power can push — a hiding place necessary, and to allow him to be a valufrom the all-pervasive system of regulation able member of a family and a community; and control. Finally, it must be recognized in theory they represent part of the indi-

that we are becoming a society based upon vidual’s rightful share in the commonrelationship and status — status deriving wealth. Only by making such benefits into primarily from source of livelihood. Status rights can the welfare state achieve its goal

is so Closely linked to personality that of providing a secure minimum basis for destruction of one may well destroy the individual well-being and dignity in a other. Status must therefore be surrounded society where each man cannot be wholly with the kind of safeguards once reserved the master of his own destiny. for personality.

Eventually those forms of largess which Conclusion

are closely linked to status must be

deemed to be held as of right. Like prop- The time has come for us to remember erty, such largess could be governed by a what the framers of the Constitution knew system of regulation plus civil or criminal so well — that ‘‘a power over a man’s subsanctions, rather than by a system based sistence amounts to a power over his will.”’ upon denial, suspension, and revocation. | We cannot safely entrust our livelihoods As things now stand, violations lead to for- and our rights to the discretion of authorfeitures — outright confiscation of wealth ities, examiners, boards of control, charac-

and status, but there is surely no need for ter committees, regents, or license

these drastic results. Confiscation, if used commissioners. We cannot permit any

at all, should be the ultimate, not the most official or agency to pretend to sole knowlcommon and convenient, penalty. The edge of the public good. We cannot put the

presumption should be that the profes- independence of any man wholly in the sional man will keep his license and the power of other men. welfare recipient his pension. These inter- If the individual is to survive in a collec-

ests should be ‘‘vested.” If revocation is tive society, he must have protection

necessary, not by reason of the fault of the against its ruthless pressures. There must individual holder but by reason of overrid- be sanctuaries or enclaves where no major-

ing demands of public policy, perhaps ity can reach. To shelter the solitary

payment of just compensation would be human spirit does not merely make possiappropriate. The individual should not ble the fulfillment of individuals; it also bear the entire loss for a remedy primarily gives society the power to change, to grow,

intended to benefit the community. and to regenerate, and hence to endure. The concept of right is most urgently These were the objects which property needed with respect to benefits such as sought to achieve, and can no longer

unemployment compensation, public achieve. The challenge of the future will be assistance, and old-age insurance. These to construct, for the society that is coming, benefits are based upon a recognition that institutions and laws to carry on this work.

misfortune and deprivation are often Just as the Homestead Act was a deliberate caused by forces far beyond the control of effort to foster individual values at an ear-

the individual, such as technological lier time, so we must try to build an eco-

change, variations in demand for goods, nomic basis for liberty today — a depressions, or wars. The aim of these ben- Homestead Act for rootless twentieth-cenefits is to preserve the self-sufficiency of tury man. We must create a new property.

Part Thirteen

The Contemporary Legal Order |

Both John P. Frank and Herbert Wechsler, rights. But this work together with a few writing in the 1950s about the work of the of the bolder opinions of its predecessors

United States Supreme Court, expressed were enough to alarm Wechsler. The © criticism. It is interesting to see how atti- court, he said, was deciding cases which tudes can shift within the span of a few it could not justify on the basis of general short years. Frank assesses the work of the principle, solely because it approved of Supreme Court and its effect on civil their results in the light of some assumed liberties, and he finds the Court wanting: goal of social policy. Wechsler’s critique the court never, he concludes, stood firm implies that some kind of long-range on the side of civil liberties during a harm is likely to ensue from the assumpcrisis. Judicial review “‘has not been of tion of an activist role by the court. This is any great significance to the civil liberties certainly a possibility, though one diffi-

of the American people.” Frank wrote cult to verify, and one wonders if the

before the landmark egalitarian and civil- advantages of judicial restraint, whatever liberties decisions of the Warren Court they might be, are worth the price of givhad been decided. No doubt, after the pas- ing up those important new doctrines sage of twenty years, he would now want which came out of the Warren Court. to revise his opinion. But this does not Wechsler’s criticisms of the Court remind alter the basic finding that the Court has, one of the attacks on the legal realists. in fact, not been zealous in defense of civil Indeed, the failures of judicial craftsman-

liberites to the extent that a convinced ship that he deplores are, in a sense, a

civil libertarian would have wanted it to translation of realist principles into decibe. We still cannot tell whether the War- sional law. But, in the light of the massive

ren Court and its work reflect a lasting social change in this century, one trend, or are only an interlude. wonders whether assigning a more mod-

Herbert Wechsler’s much discussed est role to the courts would be worth the article was originally delivered as a lec- social cost.

ture at the Harvard Law School in 1959. The final essay, by David M. Potter, asks The Warren Court decisions on criminal a fundamental and lasting question, but - rights still lay in the future, and its most one unlikely to have been posed before

revolutionary work had been in civil the turbulent decade of the 1960s. Law in 395

396 | |

The Contemporary Legal Order

this country was always connected, as it is majority of these essays share, it is the in most countries, with order, and order intimate connection between the legal invariably was tied to some sort of com- system and its social context. Less obvi-_ munity consensus. No society is strong ous, but implicit at least, is the assumpenough to sustain itself by force alone, tion that the legal order, once shaped by though there are totalitarian societies that society, in turn helps mold the particular have come very close. For societies that forms of social life, or at least sustains and are in any way “‘open,”’ stability depends maintains their structure. As society on adherence to some number of common __— becomes ever more complex, ever more

beliefs. In the 1960s, against a background subject to the subtle interplay of forces,

of war in Vietnam, urban rioting, and ever less able to call upon shared beliefs, social unrest, it was only fair to ask, as it becomes ever more dependent upon

Potter does, “‘What happens to law based law, and yet law itself is dependent upon on the norms of the community if there is community. no prevailing community, but only a mul-

tiplicity of conflicting communities? Further Reading What happens to the principle of consent Bickel, Alexander M. The Least Dangerous if the social structure has no center which

, i" Branch: The Supreme Court at the Polcan even speak the voice of consent? vsBar ;&,ofCo., . . itics. Indianapolis: Bobbs-Merrill As this book is being put together, a 1962

mood has at least partly replaced tur;; Years of the OEOthe Legal Services new, more tranquil (perhaps complacent) Johnson, Earl, Jr. Justice and Reform: The

, Formative bulence of the 1960s.TL: This reminds us that

, , ; ; Program. New York: Russell Sage Founda-

the fundamental questions of law in soci- tion. 1974 ety are always raising themselves, in Horowitz, Donald L. The Courts and Social

somewhat forms. What to . ; ; ; , different | Policy. Washington, D.C.:seems The Brookings

be an answer in one period is not even Institution. 1977

thy of a question in the next. Noneth- a an

cles oh basi , bl hi h D ‘d Pot Swindler, William F. Court and Constitui od © od problem + the avs f this tion in the 20th Century: The New Legality, CF discussed remams a © core O 1S 1932-1968. Indianapolis: Bobbs-Merrill & enterprise: if there is one theme which the 0.1970.

John P. Frank

Judicial Review and Basic Liberties

Introduction mean here no more and no less than what

, was involved in the Marbury case, that is,

...One hundred and fifty years ago, review by the Supreme Court of the validJohn Marshall for the Supreme Court ity of acts of Congress. This excludes sevdeclared the American doctrine of judi- eral matters commonly included within

cial review of the validity of acts of the meaning of the term. Specifically

Congress... excluded are (a) review of acts of Congress ... We have lived under the system for by tribunals other than the Supreme

a century and a half, and we may fairly Court, which is put aside as quantitatively examine whether we like it, and whether insignificant; (b) review by the Supreme

it needs any improvements, basic or Court of state legislation, which is based

slight. . Oo on the Constitution’s supremacy clause In this discussion, I will cling closely to quite apart from Marbury v. Madison; and

certain partially self imposed jurisdic- (c) review by the Supreme Court of executional limitations in my own subject mat- tive action. The excluded matters will be ter in the belief that one precise problem discussed only where they bear on review needs close attention. That precise prob- of the validity of federal legislation.

lem is the relation of judicial review to } civil liberty, to the rights of free speech, Uses of the Power

pess, religion, assembly and to the great procedural rights of the Constitution. For

this purpose, the term judicial review is to INVALIDATIONS

be given the narrowest of several available The most obvious measure of judicial constructions. To emphasize this narrow review is in the instances where it has construction, the term ‘“‘pure judicial been used. Here, so far as civil liberties review” will occasionally be used. It will are concerned, the balance is if anything Abridged from Supreme Court and Supreme Law, against judicial review. ,

: , 397

ed. Edmond Cahn, 109-136, by permission of the Using Mr. Warren's list? brought up to author and Indiana University Press. Copyright, date, there have been 78 instances of inva1954, by the Law Center Foundation, New York lidations. Of these, the overwhelming

University. , bulk had no direct bearing on basic liber-

398

John P. Frank

ties. They dealt, as Marbury v. Madison pending hearing, largely on the say-so of did, with distribution of the powers of the Department of Justice.1) A third case, government or, as in Adkins v. Children’s the most recent, is that of Messrs. Watson,

Hospital,2, with economic matters. A Dodd, and Lovett,12 whom Congress numerical breakdown will make the attempted to strike from all present and

future government employment by name. ,point: The Court, going back to the Garland case Distribution of All Invalidations as a precedent, held the congressional Cases unrelated to basic liberties 59 effort a bill of attainder. The holding was Total cases bearing on basic liberties 19 undoubtedly of substantial importance,

Holdi ‘dine libert 3 for Congress regarded the naming of the inves area -mmaetiied h test c nd would undoubtHoldings limiting libert g three as a test case and wou oul §5 § 11berly Holdings peripheral to civil liberties 8 edly have followed with further proscriptions had the door been left open by the

Total invalidations 78 Court.

Against these blows in behalf of basic

The eight peripheral cases are those liberties, specialized as they are, must be which involve civil liberties either of a balanced prodigious counterblows. In minor sort or in a minor way, and are eight cases the Court’s holdings, putting decisions which could fairly well have | aside any issue of how good their constigone either way without greatly affecting tutional law may have been, had the effect - the course of the republic. Three involve of limiting liberty. Concededly this is a

minor points of criminal administration matter of interpretation. What one reader _ in the District of Columbia,? and a fourth thinks limits liberty, another may think relates to the type of jury required in extends it. Let me put it this way: most

Alaska.4 students north of the Mason-Dixon line The other four of these peripheral cases and many students south of it will think are somewhat more substantial. Tot v. — that the decisions now under discussion

United States> involved a point as to per- limited, rather than extended, basic missible presumptions in criminal stat- liberties. utes, and the Cohen Grocery® case made a This group begins with Dred Scott’s contribution to the requirement of defi- case!3 declaring that Congress could not

niteness in statutes. Boyd v. United preclude slavery in the territories. The

States? and Counselman v. Hitchcock,§ other seven cases are all invalidations of the remaining two of this group, have legislation passed primarily for the prohelped shape the law of searches and sei- _ tection of Negroes under the Civil War

zuires and of self-incrimination. — Amendments. The leading three of these ...{[T]hree cases [were] listed above as cases include, first, United States v.

holdings aiding liberty. . . Reese,'* holding invalid under the Fif-

, ...Ex parte Garland,®? a distinctly teenth Amendment a statute forbidding

benign holding, invalidated the test oath = state election officials from keeping ‘‘any for lawyers after the Civil War. One of its citizen” from voting. The second was largest practical results was to retain for | United States v. Harris,** holding the the country the services of Mr. Garland, punishment of a lynch mob beyond the

an outstanding lawyer and, later, Attor- federal power. The third is the Civil

ney General. A second case was that of — Rights Cases,1° which held that Congress Wong Wing?® a holding giving some pro- could not use Fourteenth Amendment

cedural rights to aliens; specifically the | powers to prevent private acts of racial holding prohibits imprisonment of aliens discrimination. at hard labor without judicial process. (It On the basis of this brief enumeration should be noted in passing that a subse- __ this much seems inescapable: if the test of

quent decision permits their imprison- the value of judicial review to the preserment, without bail, for protracted periods vation of basic liberties were to be rested

399

Judicical Review and Basic Liberties

solely on consideration of actual invalida- date, has always been followed by a

tions, the balance is against judicial period of renewed affection for demo-

review. On the benefit side lie abolition of | cratic values. , the test oaths after the Civil War, the ben- The most striking fact in the relation of efit to aliens from Wong Wing’s case, and _ the history of repressions to the history of

the repudiation of congressional proscrip- judicial review in particular or to the tion lists. On the loss side, still using ben- | Supreme Court in general is that no direct

efit to liberty as the sole test, is the | action by the Court has ever had any sigdestruction of what was intended to be nificant bearing in either stopping or comprehensive legislation to give some slowing a repression. I am not speaking

measure of equality to the vast number of _here of the effects of the Court’s decisions

Negroes in our midst. | in moments of calm upon our conduct in This conclusion by no means requires moments of frenzy, nor of the effects of

the further conclusion that judicial review |§ individual expressions by particular jusis valueless to basic liberties. Whatit does tices, but solely of the effect of the Court at

mean is that the case for judicial review the storm center during the storm. This must be made, if any can be made, on may be illustrated tabularly, including for some basis other than consideration of the — this purpose every kind of judicial review

Court’s direct use of its power. no matter how broadly considered:

THE COURT IN THE FLOW OF HISTORY Supreme Court Response to Repressions

The same result is reached if the Court EPISODE 7 JUDICIAL RESPONSE is studied in terms of the general trends of Alien and sedition scare,

American history. Neither the spirit of lib- 1795-1801 None called for

erty nor the spirit of repression is ever "t-Masonry, ca. 1830 None called for

totally absent from the American scene. Climax of nativism, ca. 1850 None called for From time to time, one or the other Anti-anarchism 1880s—1890s No restraint

achieves sufficient dominance to provide Espionage and Bolshevik

the basis for a cyclical interpretation of flurries, 1917-1927 No restraint the history of liberty in America. If I may Contemporary repression, aa

repeat here a theory often advanced at pinnacle 1946— No restraint

before, the cycle of liberty and repression If the foregoing is true as to the action of is, in some superficial respects at least, the Court in all fields, including review of

similar to the more familiar economic state laws, review of the executive, and _ cycle of prosperity and depression. To interpretation of statutes, it is a fortiori

accentuate the similarity of form, we may true of the more narrow judicial review. use as a parallel. to the economic term ___ The bald fact is that, except for the very

“depression” the term “repression”? to narrow points involved in the Garland

symbolize the downsweeps in this cycle. and Lovett cases, Congress has never yet

It may be noted in passing that repres- passed a statute in a fit of repression sions usually occur at the opposite end of | which the Supreme Court has invalidated. an economic cycle from a depression — On the contrary, except for the very speour repressions are frequently concomi- cial and unusual reaction after the Civil

tants of prosperity. War (excluded from this table because of The term ‘‘repression”’ may be defined __ its unique circumstances), the Court has

thus: it is an intense spasm of social fury stamped the repressionist acts as

in which a commonly latent impulse to “Approved.” The dominant lesson of our destroy opposition without regard to the history in the relation of the judiciary to norms of democratic behavior becomes a _ repressions is that courts love liberty most dominantly conspicuous element in the — whenitis under pressure least.

American scene. It normally results in One is compelled to conclude again

some destruction of opposition and, to that if judicial review has had any whole-

400

John P. Frank | ~ some effect on the basic liberties of Amer- system is unending; it is old and new. In

| icans, that effect must be found elsewhere the nineteenth century, Bryce described

than on the occasions of the direct exer- —_ judicial review as one of the most admira-

cise of the power. : | ble features of our system. More recently a a — Supreme Court justice quoted Marbury v. The of Judicial Review Madison, and said, “Upon this rock the and Interaction Noncongressional _ : nation has been built.’’9 Interferences with Liberty Whether these enthusiasms are war-

ype ranted or not is outside the scope of this

In a familiar passage, Mr. Justice essay, which deals with only one frag-

Holmes said, “I do not think the United ment of the whole of judicial review. States would come to an end ifwelostour What is important is that these attitudes power to declare an Act of Congress void. _—gxist and are generally shared, whether I do think the Union would be imperiled warranted or not, and their very existence

, TO a eek rat declaration as to has the broadest of consequences on basic

nas 7 SeveTal slates. ae liberties. The Court may be timid, it ma

_ This statement, it seems tome, issound 4, (as I think) unduly timid in standing

in Doth its halves. It does, erowey cr, Hon up to Congress; but it has not been nearly

Best a compreteness of eisjuncltion as timid in standing up to the states or to between these two types of judicial iy, president. In these battles, the aura of

review which could be misleading. I have prestige stemming from the power of judi-

already excluded from consideration the cial review undoubtedly aids its Supreme Court’s review of executive effectiveness

action and of state legislation, except a oe

insofar as they must be commingled with It is not accident that the episodes of discussion of ‘‘pure’’ judicial review; but state or of executive defiance of the judi-

there is an area in whichreview they cannot antedate the estab istment or duc separated. | cial asbeaered common practice. Today where is in fact a dual interaction the president and the states largely accept between pure judicial review, or review of the Court's mandates. The current acqul-

acts of Congress, and review of state escence in judicial decisions is very difaction. This dual quality can be discussed ferent from the response of the sovereign separately, in terms of (a) the effect of state of Virginia to the cases of Hunter’s judicial review on the states (or on the Lessee or of Cohens”® 125 years ago; or the executive), and (b) the effect of review of | Tesponse of Ohio to the decisions on its

state action on pure judicial review. attempted abolition of certain bank-tax

| | exemptions;”! or President Jackson’s

EFFECT OF JUDICIAL REVIEW ON STATE (OR famous “John Marshall had made his

EXECUTIVE) REVIEW - decision ; OF Abraham Lincoln’s defiance

of Chief Justice Taney over the matter of

The principal consequences of pure Merryman. In those days, judicial review judicial review on review of state action was not a workaday practice. are wholly psychological, rather than tan- This is to say that the mere possession gible, but they are immensely important. of the power of judicial review gives the The very existence of the power of judi- opinions of the Supreme Court an extra

cial review is the greatest single source of prestige in wholly unrelated matters. The the Supreme Court’s prestige. That pres- Court is a little like the multimillionaire tige in turn gives the Court’s decisions on whose opinion is asked on Paris art or the state laws far more effect than they other- affairs of the world when he returns from

wise would have, and also greatly Europe — perhaps his possessions should

increases the self-confidence of the Court. not give these extraneous opinions any The great, the almost mystical admira- added weight, but nonetheless they do. tion for this feature of our governmental There is no way of knowing how much of

, 401

Judicial Review and Basic Liberties

the Court’s prestige comes from its pos- EFFECT OF STATE REVIEW ON JUDICIAL

session of the power of judicial review, REVIEW

but undoubtedly some of it does. The effect of state review on judicial

That prestige is directly useful to basic review is doctrinal. Since some parts of

liberties. The libertarian decisions of the the Bill of Rights are equated to the

Hughes Court in the 1930s in such cases “liberty” of the Fourteenth Amendment as Near v. Minnesota, Herndon v. Lowry, (or to the “privileges and immunities” of Lovell v. Griffin,?? and a dozen other that amendment), and since equal-protec-

decisions were accepted by the states tion concepts can be read back into the

which received them in remarkably good Fifth Amendment’s due-process clause, grace. The invalidation of many forms of there is no necessary doctrinal difference

racial discrimination in the last several between review of some state conduct and years, such as white primaries, restrictive of some federal conduct. The clear-andcovenants, segregated transportation and present-danger concept, for example, ori-

law schools, and restrictions on alien ginated in interpretation of the First land use have none of them directly | Amendment, languished for a time in involved judicial reveiw. Nonetheless interpretation of the Fourteenth, was each of them flew in the teeth of strong developed to some glory in the thirties

local sentiment, and the consequences of and early forties as an interpretation of the decisions for good have ranged from both, and then collapsed to its present at least a little to a great deal in the toothless state in the fifties as a matter of various areas mentioned. The acceptance interpretation of both. of each of the decisions mentioned is, to Because of the interacting quality of the

some unknown but real extent, aided by substantive doctrines used in judicial the fact that the Court which made them review and in state review, judicial had in addition the power of judicial review has these two additional indirect review. One may suspect, though one consequences to basic liberty. (1) Historiccannot know, that the self-confidence ally it has somewhat raised the standard with which the Court sailed into those _ to which state laws relating to liberty, partough problems was also increased by its _ ticularly to free speech, are held. Before

possession of the larger power. the Gitlow case?’ there was no federal To a lesser extent this is also true of the review of state free-speech infractions, relations of the judiciary and the execu- and, but for the judicial review cases clustive. Whether the steel-seizure case? tered around World War I, it is extremely involved a “‘basic liberty” as that term is doubtful that jurisdiction would ever being used here is arguable; but at least have been asserted in Gitlow. That some the instant acquiescence of the president good to liberty has come from the assumpmay have been conditioned by his accep- tion of jurisdiction in that case is too obvi-

- tance of the Court’s power over acts of ous to warrant elaboration. (2) The Congress. From Ex parte Milligan2* to Ex existence of a reservoir of cases on state

parte Quirin,25 in which the Court over- law enlarges the body of civil-liberties

rode without discussion executive inter- law. To the extent that Fourteenth ference with habeas corpus, to the Amendment law and First Amendment

Hawaiian martial-law cases,26 the Court law are the same, the mere existence of has approached the problem of occasion- these state cases operates to give the Conally rampaging executives with a sense of gress a few more hazards to circumvent power nurtured in part by its possession when it would restrict basic liberties.

of the power of judicial review. In this Let me enlarge briefly on this last indirect, but important, sense the exis- thought by way of preface to the following tence of the power of judicial review has section. It has been seen that so far as contributed to the maintenance of basic direct consequences to basic liberties are

liberty in the United States. concerned, judicial review has in fact

402

John P. Frank

operated as more of a drag than a protec- Congress to abandon any serious constitution to freedom. But the indirect conse- tional consideration, passing the responquences may alter the total picture. As sibility to the Court. one indirect consequence, the sheer exis- 3. Judicial review might at least have tence of judicial review makes the Court the effect of slowing and sobering conmore effective in protecting basic liberties gressional action while constitutional outside the scope of judicial review. As issues are considered. another, judicial review has had the effect 4. Judicial review might furnish the of fostering review of state intrusions rhetoric of legislative discussion, providupon liberty and of giving a doctrinal base ing useful symbols for debate as well as

for the inspection of intrusions. furnishing concrete information to But the greatest indirect consequence of legislators.

judicial review, at least theoretically,

might be its restraining effect upon the REVIEW AND RHETORIC

Congress. Whether Congress in fact is Leqeg: , re while important, are subordinate otherwise beand because for judifito/ the ; ; irst two will of berespect discussed briefly. In

more moderate in its laws than it would The latter two of these possibilities,

cial is the subject Inext to beconsidered con- | thi , ; . . ,review is connection have

the |

sidered. But certainly the interacting = |egislative history of a series of bills

quality of the two types of review materi- = which might be considered test cases: the ally increases the education of Congress. Smith Act of 1940; the legislation of 1940 Before the Lovett case, if Congress was to aimed at deporting Harry Bridges; the

pass a bill in the nature of a bill of oath provisions of the Taft-Hartley Act of

anainder, jt had to review) considerasCummings V.Act 1947; the McCarran Internal Security _ Missouri2® (state much as Ex of and 1950.30

parte Garland (pure judicial review).

When it was passing the Smith and As to rhetoric, there is no doubt that

McCarran Acts, Herndon v. Lowry (state judicial review has furnished much of the

review) was as relevant as Abrams v. verbalization for our discussion of constiUnited States”? (pure judicial review). tutional issues. For this result, however, One important indirect effect of judicial judicial review was unnecessary. While review, therefore, is that it contributes to judicial review was contemplated from the development of a related body of doc- the beginning, the power went almost trine which may have the effect of unexercised until the Civil War?! and yet, restraining Congress in passing laws for the first seventy years of national expe-

restrictive of liberty. rience, almost all issues of moment were , debated in constitutional terms. A listing Consequences in Congress would only enumerate the obvious; Judicial review, even though it resulted indeed the level of constitutional arguin negligible invalidations or indeed in no ment in Madison’s Remonstrance on the

invalidations at all, might have a very Alien and Sedition Acts, or Lincoln’s

substantial effect on the legislative address at Cooper Union, or Binney’s

process, whether for good or for evil. pamphlets on habeas corpus is, qualitatiSome of these consequences could be: vely, far superior to any recent debate by 1. Congress might abstain from passing public figures on constitutional quesrepressive legislation because of a fear tions. There is a very serious possibility that it would be invalidated — or, at a __ that by enmeshing great principles in the minimum, might eliminate some of the minute details of the case system, judicial more repressive features of legislation for review has rendered serious public dis-

that reason. cussion of constitutional questions less, 2. On the other hand, the fact that judi- instead of more, valuable; there is in any cial review is in the offing might cause case no evidence that the quality of dis-

, 403 Judicial Review and Basic Liberties

cussion has been improved greatly by Jehovah’s Witness riots which followed judicial review. The great dissents are the Court’s approval of the enforced flag rhetorically helpful, but quaere whether salute.33 The act of upholding a statute on balance they are worth the cost has a way, not always but very frequently, Insofar as judicial review has increased of ending debate on the merits; the syndithe stock of constitutional rhetoric, it may calism acts, once upheld, not only stay on

be a misfortune. There are two angles to the books permanently but become be: considered: (a) the consequence of models for future statutes.

excessive attention to constitutionalism Without judicial review, we would

and lack of attention to the merits; (b) the experience the constitutional discussion related equating of constitutionality with but there never would be a final resolu-

merit. tion of the issue by a single dramatic act. As to the first, Chafee has pointed out Hence the debate on the merits would not the vice of discussion which concentrates so brusquely end. There are of course excessively on constitutional factors. exceptions to what is being said here, but ‘What you are really saying then is that [a it is at least a reasonable hypothesis that

legislature] ought not to pass the measure frequently, as judicial review has worked even though they are not persuaded thatit _in fact in relation to basic liberties, it has

is undesirable. Whatever they think about depressed the status of those liberties it, the Supreme Court will annul it and so toward the lowest common level of conit will be useless. But this argument will stitutional acceptance.

fail unless you can convince your hearers As to whether the case law flowing that the Court will in fact be against the from judicial review has slowed and

measure. In order to do this, you have to sobered congressional discussion, a fuller turn aside from the reasons about desir- discussion follows immediately below. ability which are part of everybody’s Suffice it to say here that there have been thinking and stick to the kind of language few instances of a substantial sobering which lawyers use [emphasis added]. You effect. In most, but not all, cases of serious have to be absolutely sure of your ground, constitutional doubt, the constitutional

for if other lawyers (on the legislative element of the discussion is ritualistic.

committee or elsewhere) can raise plausi- Proponents of the bill under discussion ble doubts about the validity of your con- arm themselves with legal opinions

stitutional position, you will get upholding its constitutionality. These

nowhere.’’32 , memoranda, written by leading members

For the reasons already stated, judicial of the American Bar Association, may be review cannot be blamed for the Ameri- introduced as a first point of business in can habit of debating issues in constitu- committee hearings.34 For most Congresstional terms, with too little regard for the men, the stately opinions end all need for merits. That habit was ingrained long further intellectual ferment. When oppobefore judicial review became routine. nents of the bill arrive with legal memoBut Chafee does raise serious doubt as to randa on the other side, their statements whether the lawyer’s talk into which judi- will ordinarily be received into the record cial review has pushed these debates has with politeness but without even a modi-

been an improvement. cum of discussion.*5 Some witnesses may The second branch of the subject is be questioned at length on nonconstitumore serious; the practice of judicial tional matters; if they persist on a consti-

review has tended to equate constitution- tutional line, they may be assured that the ality with merit. No matter how loudly the committee has a memorandum that clears Supreme Court proclaims that it is not everything up.3© When debate reaches the passing upon the wisdom of legislation, floor, the prepared opinions may again be validation is treated as an imprimatur. An cited,37 and only a minute fragment of

extreme instance is the outbreak of anti- debate time is usually consumed in a

John P. Frank , , 404

spontaneous discussion of constitutional requirement for union officers was even principles. The serious consequences of __ perfunctorily drawn into question,*? and

judicial review, if any, lie elsewhere. this though Justices Murphy and Rutledge

| | still sat on the Court. Nor was this paucity

JUDICIAL REVIEW: LEGISLATIVE RESTRAINT of consideration attributable to unaware-

OR EXCUSE? , ness of the affidavit clause; the measure The;precise problem hereof is whether WAS /Ully considered, with ato Jengtuy dis qe | 3 cussion alternative proposals reac judicial review operates, on the one Hane past as well as present. Communist Party to restrain onenessof tt fom members.*3 Yet constitutional give it athesense irresponsibility. nan ' power to

“This discussion is exclusively in the act ine provision was either assumed or context of legislation restrictive of civil lave ed as an unproper matter tor 1egisliberties. Everyone knows that judicial "The famous a dvocacy-of-overthrow secreview may have a eueae role ae tion of the Smith Act,*4 as another exam-

itori ’n,38 ting doubt on ae bine:

fields. For examp ie, Wing v. (Citicago ple, received only slightly more tha validity rane declaratory judgment constitutional consideration in Congress. slowed that p rocedural reform tor bra made twice in the House*5 and once in the

| | Direct references to constitutionality were

one Frazier-Lemke Act be , . ; é

and me Brandeis ora eee avicating Senate,*® and in all instances the debate for design of the next.4° But there is no was casua ene tiscussion enced with a strong impulse to repress basic liberties “isc aimer cee bill b Re secon tative except when emotion is hot, hotter than Smith” 1 can not tell ” anymore when

it becomes over procedural reform, or oe ON ee an,

over bankruptcy or production control. In anything 8 constitutional or unconstituthis respect basic liberties might be in a tional.”’*’) In the hearings, discussion was

special class a equally negligible; one witness received a Crh dj o, ust b . th th polite request for the citation of the Gitlow € discussion must begin wl © case from which he had earlier quoted.

concession that there can be no assured > “On the other hand. the McCarran Act conclusions. It must proceed into legisla- wag accompanied by considerable legal tive history as its only available source, —_qigcussion, although the arguments were

there to discover a p attern of words and not brought squarely into relation one to acts. But no matter how much talk on con- another, the two sides simply passing stitutional points is found, not even the each other by. The only legislative debate fiercest proponent of content analysis will studied in which constitutional discusclaim that social science techniques can sion took foremost consideration was in

determine the motives underlying an the abortive congressional attempt in

utterance or the precise effect these sym- 1940 to deport Harry Bridges by name bols have upon the attitudes of others.*? Here Congress was squarely confronted Systematic content analysis rejected, the with Ex parte Garland and the related analyst is cast back upon judgments via gtate-review decision of Cummings v. impression. His impressions may be Missouri, and there was abundant discusbased in part on (1) quantity and quality sion of the relation of these cases to the

of constitutional discussion; and (2) bill | ostensible response to constitutional a

discussion. , , When constitutional discussion does

(1) Quantity and quality of constitu- appear, its quality is extremely variable. tional discussion: The legislative history Many Congressmen are not lawyers, and,

of the Taft-Hartley Act reveals only asin- | of those who are, many have only a gle occasion upon which the constitution- remote acquaintance with the Constitu-

ality of the non-Communist—affidavit | tion. Hence discussion may be orna-

405

Judicial Review and Basic Liberties

mented with a good deal that is irrelevant, Constitution to become punctured with and some that is absurd. For example, the holes like this, by reason of which it will Senate managers of Taft-Hartley felt com- gradually be broken down? .. . The prece-

pelled to read to their colleagues a dent we are establishing this afternoon lengthy and citation-laden memorandum will rise up to plague us in the future.’’>4

supporting the proposition that the 3. The conscientious compromiser,

union-shop provisions of the bill were e.g., Senator Danaher, on a different phase

valid under the commerce clause — a of the Bridges bill, after a proposal of his matter not open to much dispute.*® Helen own had been included: “‘I believe most, if

Gahagan Douglas, a nonlawyer, solemnly not all, of my objection has been met, _ predicted to the House that the whole act chiefly for the reason that if there be any would be invalidated because in two labor question as to the constitutionality of board cases, the Court had said that col- someone undertaking to organize a soci-

lective bargaining was a good thing.*° ety to overthrow the Government of the

This much may be concluded as to United States by force or violence, I

quantity and quality: The quantity of con- would much rather err in favor of the pubstitutional consideration of legislation is lic policy of sustaining the Government’s

irrationally unpredictable, and even right to protect itself than I would to pro-

where discussion occurs it may pass by tect the rights of an individual’’ of crimithe hard points to center on the obvious. nal intent.5? Much of it is ritualistic, taking the form of While the separate types may be identistatements put in the record simply as fied, the insoluble problem remains as to part of the routine; like the first and sec- how many of each type may be expected

ond readings of a bill. On the other hand, to be found in a Congress. The Bridges bill -some of it is squarely to the point. Quality is a good test: how many men could be is uneven, varying from the silly to the found who would vote against their conacute. Insofar as the words reflect what is victions on the merits because of constituactually felt, one must conclude that for tional persuasion? The excellence of the many a congressman, the practical effect bill for purposes of this text is that a large of judicial review is to create a mass of number of legislators might reasonably

cases too large and complex to be have been expected to entertain constitu-

digested. | tional doubts here if ever they would.

_(2) Responses to constitutional discus- There were a few. Representative Dicksion: Responses of individual legislators stein rested on the constitutional point to constitutional arguments are of three —_—ajone.53 Representative Leavy, who had

types, typified in the discussion of the ten years of experience as a trial judge,

Bridges bill: pledged himself to vote for the bill if it

1. The legislative buckpasser,e.g., Rep- could be revised into constitutional form, resentative Case: “‘This bill may be uncon- but not otherwise.s4+ Representative stitutional; the lawyers here seem divided Hobbs, remembered equally for his legal

on that question; the balance of us can integrity and his passionate attacks on only register the heart and mind of | Communism, applauded the deportation

America on the broad question of Bridges as a goal, but said, “I deplore,

involved.”>° , strongly, the proposed means.’’55 And so 2. The stickler for constitutional regu- with a few others, each relying on Garlarity as he sees it, e.g., Representative § land and Cummings.

O’Connor: ‘‘We have got something at The bill passed the House 330 to 42, stake here today much bigger than Harry but its attainder characteristics were

Bridges. Of course, I will agree with my removed in Senate committee, and it was friend; I think he ought to rot. The gentle- eventually enacted without them. The

man is right. But... do you want your Senate committee’s report makes clear

406

, John P. Frank that its action was heavily, though not action in the Senate, it contained provi-

exclusively, influenced by the cases.5° © sions for registration of Communists and

Here is an instance, then, in which for dealing with alien Communists. The well-defined Supreme Court decisions following legislative history is exceedprevented a congressional relapse into ingly confusing, but appears to be this:

: the precise activity previously pro- The liberal bloc in the Senate, foreseeing scribed. But even here, 330 members of the passage of the act, offered the Kilgore the House of Representatives withstood substitute, a provision which would have

the clearest of Court holdings and the permitted the ruthless incarceration of

most lucid floor discussion. ‘“‘subversives” in time of actual war, but As has been noted, in the Smith and would have eliminated most of the other

: Taft-Hartley Acts, the Constitution had provisions of the act. Their move seems not even rhetorical significance. Not so to have been intended as a tactic to defeat for the McCarran Act, which was appre- the peacetime provisions of the measure.

ciably affected by constitutional discus- Foreseeing this result, Senators McCar- | sion. The effect, however, was of a sort ran and Ferguson immediately opposed quite different from that of the Bridges the “concentration camp” provision on a bill. In the McCarran Act the constitu- number of constitutional grounds. Senational discussion went to perfecting tor McCarran pointed out that the substidetails, so that the decisions became one tute would amount to a total elimination vast map showing how the legislation of the provisions of his own bill, and that

could be brought safely to its designed it would replace his bill with a

end. thoroughly unconstitutional measure Some basic decisions may have been because detention (a) would be without

influenced by fears of invalidation. The warrant, (b) would prevent a speedy pubHouse Committee report on the McCarran lic trial, (c) would deny trial by jury, (d) Act shows that serious consideration was would not provide for confrontation of

given to proposals to outlaw the Commu- witnesses and cross-examination, (e)

nist Party outright, which were rejected would deny the right to process for because of ‘‘risk of [its] being held obtaining witnesses in the detainee’s

unconstitutional.’5” Provisions in the behalf, and (f) might result in involuntary Smith Act concerning the outlawing of servitude.

civilian military organizations were The Senate thus observed the unusual stricken because of ‘“‘questionable consti- phenomenon of Senators Kilgore and

tutionality.”’5® Apart from these exam- Douglas defending a bill against the ples, possibly important, there was little charge that it invaded personal liberty serious constitutional impact. For exam- and Senators McCarran, Ferguson, and ple, a provision that the attorney general Mundt attacking the same measure on should determine an organization’s Com- the ground that it violated the Bill of munist tinge read, ‘having regard to Rights. But once the Kilgore measure was

some or all of the following considera- defeated, Senator McCarran added a tions,’’ followed by a series of criteria. detention-camp provision to his own This was attacked as unconstitutionally bill.6° On September 12, 1950, one day vague, and was therefore redrafted to after he attacked the Kilgore measure as read: ‘“‘The Board shall take into consid- unconstitutional, he defended his own eration the extent to which” the same cri- version as curing the defects of the Kil-

teria are present.>9 gore proposal.

The big constitutional debate in con- The intriguing fact about the McCarran nection with the McCarran Act went to measure is that, while it cures some of the so-called concentration-camp provi- the Kilgore defects, it denies several of

sions. As the bill was approaching final the identical rights which Senator

407

Judicial Review and Basic Liberties

McCarran had found wanting in the Kil- | Fourteenth Amendment. But for a variety

gore measure. He complained of want of of reasons including simple want of

trial by jury;® his own bill has an admin- understanding of legal refinements, the istrative procedure and no jury.®? He Binghams and the Hobbses are the colorcomplained of want of a speedy public ful exceptions.

trial;©3 again, his own measure is admin- If we had not become a “judicial

istrative and some of the evidence may § democracy,’”’ we might have become, in a

be kept secret.°* He complained of want sense, a “parliamentary democracy,” of confrontation;®> his own measure per- with exclusive authority in Congress to

mits the attorney general to withhold interpret the Constitution. Whether, from from the detainee the “identity or evi- the standpoint of liberty, this would have

dence”’ of witnesses and to put in “‘confi- been for the best is arguable; there is no

dential evidence’’ when security way of knowing whether greater respon-

requires. °° sibility might have gone with greater There is scarcely a blunter exposure of power. Before the Civil War, when judithe Constitution as rhetoric rather than as cial review was largely theoretical, con-

substance than this McCarran Act his- stitutional debate in Congress was of a tory. For reasons of strategy, the liberals higher order than we now know,®’ but pushed a bill of most doubtful constitu- © whether it was more objective and tionality; the conservatives opposed the responsible is not demonstrated. In the bill on constitutional grounds and then great debate of the 1830s and 1840s over within twenty-four hours were sponsor- the right of abolitionists to petition Coning legislation with many of the very gress, the discussion was constitutional, vices they had just decried. In such a sit- but the final vote was sectional.®* Peruation surely the prospect of judicial haps most Americans from the beginning review is having no effective bearing on have subordinated their constitutional

the affairs of the Capitol. judgments to their substantive wishes — the point is not proved either way.

CONCLUSION It is distinctly possible that judicial Measures restrictive of basic liberties review has encouraged a tendency to

usually spring from a strong legislative congressional irresponsibility (a) by prodemand. With a preponderant number of liferating the law through so many decilegislators, the existence of judicial sions that Congress cannot be expected to

review has negligible effect on the cope with it; and (b) by giving an appear-

demand except where outstanding cases ance of a judicial veto in the field of libare so directly in point that they are in- erty when in fact there is almost none. escapable; even then, doubtful legislation The average congressman would be sur-

can pass, as the Bridges bill swept prised to know how little actual restraint

through the House. Individual legislators the Court puts upon him. The repeated will stick to constitutional principle, just episodes of buck passing exemplify Conas Representative Bingham, a leading gress’s refusal to trouble itself about legal

House radical, voted against the Civil issues in a comfortable, if mistaken,

Rights Act of 1866 because he thought it assurance that the judiciary will correct

would be unconstitutional without the the worst errors. ,

Herbert Wechsler | | , Toward Neutral Principles of Constitutional Law

The Standards of Review pretation whether its result in the imme-

: , , diate decision seems to hinder or advance

If courts cannot escape the duty of 7 the interests or the values they support.

deciding whether actions of the other The man who simply lets his judgment

branches of the government are consistent turn on the immediate result may not, with the Constitution, when a case is however, realize that his position implies properly before them you will not doubt that the courts are free to function as a the relevancy and importance of demand- naked power organ, that it is an empty ing what, if any, are the standards to be affirmation to regard them, as ambivafollowed in interpretation. Are there, — lently he so often does, as courts of law. If _ indeed, any criteria that boththe Supreme he may know he disapproves of a decision Court and those who undertake to praise when all he knows is that it has sustained or to condemn its judgments are morally a claim put forward by a labor union or a and intellectually obligated to support? taxpayer, a Negro or a segregationist, a By this I mean criteria that can be framed corporation or a Communist — he acquiand tested as an exercise of reason and not __ esces in the proposition that a man of dif-

merely as an act of willfulness or will. ferent sympathy but equal information Even to put the problem is, of course, to may no less properly conclude that he

raise an issue no less old than our culture. approves. Those who perceive in law only the ele-. You will not charge me with exaggerament of fiat, in whose conception of the tion if I say that this type of ad hoc evalualegal cosmos reason has no meaning or no tion is, as it has always been, the deepest place, will not join gladly inthe search for problem of our constitutionalism, not standards of the kind I have in mind. So, only with respect to judgments of the

too, must I anticipate dissent from those courts but also in the wider realm in more numerous among us who, vouching which conflicting constitutional positions

no philosophy to warranty, frankly or have played a part in our politics. covertly make the test of virtue in inter- = Did not New England challenge the embargo that the South supported on the Reprinted, in slightly abridged form, from Harvard very ground on which the South was to © Law Review, 73 (1959), pp. 10-35, by permission. resist New England’s demand for a protec408

, 409

Toward Neutral Principles of Constitutional Law

tive tariff?! Was not Jefferson in the Loui- seceded from the Union and were not a

siana Purchase forced to rest on an foreign enemy at war.How simple the

expansive reading of the clauses granting class historian could make it all by treat-

national authority of the very kind that he ing as the only thing that mattered had steadfastly opposed in his attacks whether Mr. Justice Curtis had, on the

upon the Bank?? Can you square his dis- occasions noted, helped or hindered the appointment about Burr’s acquittal on the attainment of the freedom of the slaves.

treason charge and his subsequent request I have cited these examples from the for legislation? with the attitude toward early years of our history since time has freedom and repression most enduringly bred aloofness that may give them added associated with his name? Were the aboli- force. What a wealth of illustration is at tionists who rescued fugitives and were hand today! How many of the constituacquitted in defiance of the evidence able tional attacks upon congressional investi-

to distinguish their view of the compul- gations of suspected Communists have

! sion of a law of the United States from that their authors felt obliged to launch advanced by South Carolina in the ordi- against the inquiries respecting the activi-

nance that they despised? ties of Goldfine or of Hoffa or of others I

To bring the matter even more directly might name? How often have those who home, what shall we think of the Harvard think the Smith Act, as construed, inconrecords of the Class of 1829, the class of sistent with the First Amendment made

Mr. Justice Curtis, which, we are told, clear that they also stand for constitupraised at length the justice’s dissent in tional immunity for racial agitators fanthe Dred Scott case but then added, ning flames of prejudice and discontent? “Again, and seemingly adverse to the Turning the case around, are those who in above, in October, 1862, he prepared a relation to the Smith Act see no virtue in legal opinion and argument, which was distinguishing between advocacy of published in Boston in pamphlet form, to merely abstract doctrine and advocacy the effect that President Lincoln’s Procla- which is planned to instigate unlawful mation of prospective emancipation of the action,* equally unable to see virtue in the

slaves in the rebellious States is same distinction in relation, let us say, to

unconstitutional.”’ | advocacy of resistance to the judgments of Of course, a man who thought and, as a the courts, especially perhaps to judgjustice, voted and maintained that a free ments vindicating claims that equal proNegro could be a citizen of the United tection of the laws has been denied? I may States and therefore of a state, within the live a uniquely sheltered life, but am I - meaning of the constitutional and statu- | wrong in thinking I discerned in some tory clauses defining the diversity juris- extremely warm enthusiasts for jury trial a diction; that Congress had authority to certain diminution of enthusiasm as the forbid slavery within a territory, even one issue was presented in the course of the acquired after the formation of the Union; debate in 1957 on the bill to extend fedand that such a prohibition worked eman- eral protection of our civil rights? cipation of a slave whose owner brought All I have said, you may reply, is somehim to reside in such a territory — a man thing no one will deny, that principles are who thought all these things detracted largely instrumental as they are employed obviously from the force of his positions if in politics, instrumental in relation to

he also thought the president was without results that a controlling sentiment authority to abrogate a form of property demands at any given time. Politicians established and protected by state law recognize this fact of life and are obliged within the states where it was located, to trim and shape their speech and votes states which the president and his critic accordingly, unless perchance they are alike maintained had not effectively prepared to step aside.The example that

410

Herbert Wechsler John Quincy Adams set somehow is rarely however much we may admire such a rea-

followed. , soned exposition when we find it in those That is, indeed, all I have said, but I other realms. now add that whether you are tolerant, ~ Does not the special duty of the courts

perhaps more tolerant than I, of the ad hoc to judge by neutral principles addressed in politics, with principle reduced to a to all the issues make it inapposite to conmanipulative tool, are you not also ready tend, as Judge Hand does, that no court to agree that something else is called for can review the legislative choice — by from the courts? I put it to you that the any standard other than a fixed “‘historical main constituent of the judicial process is meaning”’ of constitutional provisions® —

precisely that it must be genuinely princi- without becoming a “third legislative pled, resting with respect to every step chamber?’’’ Is there not, in short, a vital that is involved in reaching judgment on difference between legislative freedom to analysis and reasons quite transcending appraise the gains and losses in projected the immediate result that is achieved. To measures and the kind of principled

, be sure, the courts decide, or should appraisal, in respect of values that can decide, only the case they have before reasonably be asserted to have constitu-

them. But must they not decide on tional dimension, that alone is in the grounds of adequate neutrality and gener- province of the courts? Does not the dif-

ality, tested not only by the instant appli- ference yield a middle ground between a cation but by others that the principles judicial House of Lords and the abandonimply? Is it not the very essence of judi- ment of any limitation on the other

cial method to insist upon attending to branches — a middle ground consisting of such other cases, preferably those involv- judicial action that embodies what are ing an opposing interest, in evaluating surely the main qualities of law, its gener-

any principle avowed? ality and its neutrality? This must, it Here, too, I do not think that I am stat- seems to me, have been in Mr. Justice

ing any novel or momentous insight. But Jackson’s mind when in his chapter on the now, as Holmes said long ago in speaking Supreme Court “‘as a political institution”

of “‘the unrest which seems to wonder he wrote® in words that I find stirring: vaguely whether law and order pay,” we “Liberty is not the mere absence of ‘need education in the obvious.’> We restraint, it is not a spontaneous product need it more particularly now respecting of majority rule, it is not achieved merely

constitutional interpretation, since it has by lifting underprivileged classes to become a commonplace to grant what power, nor is it the inevitable by-product

many for so long denied: that courts in of technological expansion. It is achieved constitutional determinations face issues only by a rule of law.” Is it not also what that are inescapably ‘political’? — politi- Mr. Justice Frankfurter must mean in callcal in the third sense that I have used that ing upon judges for ‘‘allegiance to nothword — in that they involve a choice ing except the effort, amid tangled words

among competing values or desires, a and limited insights, to find the path choice reflected in the legislative or exec- through precedent, through policy, utive action in question, which the court through history, to the best judgment that

must either condemn or condone. fallible creatures can reach in that most What is crucial, I submit, is not the difficult of all tasks: the achievement of nature of the question but the nature of | justice between man and man, between the answer that may validly be given by man and state, through reason called the courts. No legislature or executive is § law?’ obligated by the nature of its function to You will not understand my emphasis support its choice of values by the type of upon the role of reason and of principle in

reasoned explanation that I have sug- the judicial, as distinguished from the gested is intrinsic to judicial action — legislative or executive, appraisal of con-

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Toward Neutral Principles of Constitutional Law

flicting values to imply that I depreciate wives charged with the murders of their the duty of fidelity to the text of the Con- husbands overseas could be tried there stitution, when its words may be decisive before a military court.‘4 Does the lan— though I would certainly remind you of guage of the double-jeopardy clause or its

the caution stated by Chief Justice preconstitutional history actually help to Hughes: ‘‘Behind the words of the consti- decide whether a defendant tried for

tutional provisions are postulates which murder in the first degree and convicted limit and control.’’!° Nor will you take me of murder in the second, who wins a to deny that history has weight in the elu- reversal of the judgment on appeal, may cidation of the text, though it is surely be tried again for murder in the first or subtle business to appraise it as a guide. only murder in the second?}5 Is there sigNor will you even think that I deem prece- nificance in the fact that it is ‘“‘jeopardy of dent without importance, for we surely life or limb’’ that is forbidden, now that no

must agree with Holmes that ‘‘imitation of one is in jeopardy of limb but only of the past, until we have a clear reason for imprisonment or fine? The right to ‘‘have change, no more needs justification than the assistance of counsel’’ was consid_appetite.”’11 But after all, it was Chief Jus- ered, I am sure, when the Sixth Amendtice Taney who declared his willingness ment was proposed, a right to defend by ‘that it be regarded hereafter as the law of counsel if you have one, contrary to what this court, that its opinion upon the con- was then the English law.!° That does not struction of the Constitution is always seem to me sufficient to avert extension of open to discussion when it is supposed to its meaning to imply a right to courthave been founded in error, and that its appointed counsel when the defendant is

judicial authority should hereafter too poor to find such aid’” — though I

depend altogether on the force of the rea- admit that I once urged the point sinsoning by which it is supported.’’!? cerely as a lawyer for the government.!® It Would any of us have it otherwise, given is difficult for me to think the Fourth the nature of the problems that confront Amendment freezes for all time the com-

the courts? mon law of search and of arrest as it preAt all events, is not the relative compul- vailed when the amendment was adopted,

sion of the language of the Constitution, whatever the exigencies of police probof history and precedent — where they do lems may now be or may become. Nor not combine to make an answer clear — should we, in my view, lament the fact itself a matter to be judged, so far as possi- that ‘‘the’’ freedom of speech or press that ble, by neutral principles — by standards Congress is forbidden by the First Amend: that transcend the case at hand? I know, of ment to impair is not determined only by

course, that it is common to distinguish, the scope such freedom had in the late

as Judge Hand did, clauses like ‘‘due eighteenth century, though the word

process,” cast “in such sweeping terms ‘the’? might have been taken to impose a that their history does not elucidate their limitation to the concept of that time — a contents,’’!3 from other provisions of the time when, Benjamin Wright has recently Bill of Rights addressed to more specific reminded us, there was remarkable conproblems. But the contrast, as it seems to sensus about matters of this kind.19 me, often implies an overstatement of the Even ‘“‘due process,” on the other hand, specificity or the immutability these other might have been confined, as Mr. Justice clauses really have — at least when prob- Brandeis urged originally,° to a guaran-

lems under them arise. tee of fair procedure, coupled perhaps

No one would argue, for example, that with prohibition of executive displacethere need not be indictment and a jury ment of established law — the analogue

trial in prosecutions for a felony in district for us of what the barons meant in Magna courts. What made a question of some dif- Carta. Equal protection could be taken as

ficulty was the issue whether service no more than an assurance that no one

412 | ,

Herbert Wechsler

may be placed beyond the safeguards of understood by all English-speaking comthe law, outlawing, as it were, the possi- | munities, would become the partisan of a

bility of outlawry, but nothing else. Here, particular set of ethical or economical too, I cannot find it in my heart to regret opinions.’’?! that interpretation did not ground itself in The virtue or demerit of a judgment ancient history, but rather has perceived turns, therefore, entirely on the reasons in these provisions a compendious affir- that support it and their adequacy to mation of the basic values of a free soci- maintain any choice of values it decrees, ety, values that must be given weight in or, it is vital that we add, to maintain the legislation and administration at the risk rejection of a claim that any given choice

of courting trouble inthe courts. should be decreed. The critic’s role, as T.

So far as possible, to finish with my R. Powell showed throughout so many point, I argue that we should prefer to see fruitful years, is the sustained, disinterthe other clauses of the Bill of Rights read ested, merciless examination of the reaas an affirmation of the special values sons that the courts advance, measured by they embody rather than as statements of standards of the kind I have attempted to a finite rule of law, its limits fixed by the describe. I wish that more of us today consensus of a century long past, with could imitate his dedication to that task.

problems very different from our own. To ,

read them in the former way is to leave | Some Appraisals of Review room for adaptation and adjustment if and One who has ventured to advance such when competing values, also having con- generalities about the courts and constitustitutional dimension, enter on the scene. tional interpretation is surely challenged Let me repeat what I have thus far tried to apply them to some concrete problems to say. The courts have both the title and — if only to make clear that he believes in the duty when a case is properly before what he says. them to review the actions of the other 1. I start by noting two important fields branches in the light of constitutional pro- of present interest in which the Court has visions, even though the action involves been decreeing value choices in a way value choices, as invariably action does. that makes it quite impossible to speak of In doing so, however, they are bound to principled determinations or the statefunction otherwise than as a naked power ment and evaluation of judicial reasons,

organ; they participate as courts of law. since the Court has not disclosed the

_ This calls for facing how determinations grounds on which its judgments rest. of this kind can be asserted to have any The first of these involves the sequel to ©

legal quality. The answer, I suggest, the Burstyn case,22 in which, as you

inheres primarily in that they are — or are recall, the Court decided that the motion

obliged to be — entirely principled. A picture is a medium of expression

principled decision, in the sense I have in included in the ‘‘speech”’ and “‘press’’ to mind, is one that rests on reasons with which the safeguards of the First Amendrespect to all the issues in the case, rea- ment, made applicable to the states by the sons that in their generality and their neu- Fourteenth, apply. But Burstyn left open,

trality transcend any immediate result as it was of course obliged to do, the that is involved. When no sufficient rea- extent of the protection that the movies sons of this kind can be assigned for over- are accorded, and even the question

turning value choices of the other whether any censorship is valid, involv-

branches of the government or of a state, ing as it does prior restraint. The judgthose choices must, of course, survive. ment rested, and quite properly, upon the Otherwise, as Holmes said in his first vice inherent in suppression based upon a opinion for the Court, “a constitution, finding that the film involved was ‘‘sacri-_ instead of embodying only relatively fun- legious’”’ — with the breadth and vague-

, damental rules of right, as generally ness that that term had been accorded in

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Toward Neutral Principles of Constitutional Law

New York. ‘‘Whether a state may censor that the question whether it is stronger, motion pictures under a clearly drawn weaker, or of equal weight appears to me statute designed and applied to prevent to call for principled decision. I do not the showing of obscene films’’ was said to know, and I submit you cannot know, | be ‘‘a very different question’ not decided whether the per curiam affirmance in the by the Court.?3 In five succeeding cases, Dawson case, involving public bathdecisions sustaining censorship of dif- houses and beaches, embraced the broad ferent films under standards variously opinion of the circuit court that all stateframed have been reversed, but only by enforced racial segregation is invalid or per curiam decisions. In one of these,?4 in approved only its immediate result and, which I should avow I was of counsel, the if the latter, on what ground. Is this standard was undoubtedly too vague for ‘process of law,’ to borrow the words any argument upon the merits. | find it Ernest S. Brown has used so pointedly in hard to think that this was clearly so in all writing of such unexplained decisions the others. Given the subtlety and diffi- upon matters far more technical?® — the culty of the problem, the need and oppor- process that alone affords the Court its tunity for clarifying explanation, are such title and its duty to adjudicate a claim

unexplained decisions in a new domain that state action is repugnant to the of constitutional interpretation consonant Constitution?

with standards of judicial action that the Were I a prudent man I would, no

Court or we can possibly defend? I realize doubt, confine myself to problems of this that nine men often find it easier to reach order, involving, not the substance, but agreement on result than upon reasons the method of decision — for other illus-

and that such a difficulty may be posed trations might be cited in the same — within this field. Is it not preferable, how- domain. I shall, however, pass beyond ever, indeed essential, that if this is so the this to some areas of substantive interpre-

variations of position be disclosed??5 tation which appear to me to illustrate The second group of cases to which I my theme. shall call attention involves what may be 2. The phase of our modern constitucalled the progeny of the school-segraga- tional development that I conceive we tion ruling of 1954. Here again the Court can most confidently deem successful has written on the merits of the constitu- inheres in the broad reading of the comtional issue posed by state segregation merce, taxing, and related powers of the only once;2° its subsequent opinions on Congress, achieved with so much diffi-

the form of the decree?” and the defiance culty little more than twenty years ago — in Arkansas2® deal, of course, with other against restrictions in the name of state matters. The original opinion, you recall, autonomy to which the Court had for a was firmly focused on state segregation time turned such a sympathetic ear.

in the public schools, its reasoning Why is it that the Court failed so com-

accorded import to the nature of the edu- pletely in the effort to contain the scope cational process, and its conclusion was of national authority and that today one that separate educational facilities are reads decisions like Hammer v. Dagen-

‘inherently unequal.”’ hart,31 or Carter Coal,3? or the invalidaWhat shall we think, then, of the tion of the Agricultural Adjustment Act?

Court’s extension of the ruling to other with eyes that disbelieve? No doubt the public facilities, such as public transpor- answer inheres partly in the simple facts tation, parks, golf courses, bathhouses, of life and the consensus they have gen-

and beaches, which no one is obliged to erated on the powers that a modern

use — all by per curiam decisions?2® nation needs. But is it not a feature of the

That these situations present a weaker case as well — a feature that has real case against state segregation is not, of importance — that the Court could not course, what I am saying. I am saying articulate an adequate analysis of the

414

Herbert Wechsler

restrictions it imposed on Congress in of the conduct of life with which on simi-

favor of the states, whose representatives lar principles Congress might not — upon an equal footing in the Senate — interfere.’’35

controlled the legislative process and had 3. The poverty of principled articula-

broadly acquiesced in the enactments tion of the limits put on Congress as

that were subject to review? against the states before the doctrinal

Is it not also true and of importance reversal of the thirties was surely also that some of the principles the Court true of the decisions, dealing with the

affirmed were strikingly deficient in neu- very different problem of the relationship trality, sustaining, for example, national between the individual and government,

authority when it impinged adversely which invoked due process to maintain upon labor, as in the application of the laissez faire. Did not the power of the Sherman Act, but not when it was sought great dissents inhere precisely in their to be employed in labor’s aid? On this | demonstrations that the Court could not score, the contrast in today’s position cer- present an adequate analysis, in terms of

tainly is striking. The power that sus- neutral principles, to support the value

tained the Wagner Act is the same power choices it decreed? Holmes, to be sure, that sustains Taft-Hartley — with its even saw limits beyond which ‘the contract greater inroads upon state autonomy but and due process clauses are gone”; and with restraints on labor that the Wagner his insistence on the need for compensa-

Act did not impose. tion to sustain a Pennsylvania prohibitOne of the speculations that I must ion of the exploitation of subsurface coal,

confess I find intriguing is upon the threatening subsidence of a dwelling question whether there are any neutral belonging to the owner of the surface principles that might have been land, indicates the kind of limit he peremployed to mark the limits of the com- ceived.3¢ Am I simply voicing my own merce power of the Congress in terms sympathies in saying that his analysis of

more circumscribed than the virtual those limits has a thrust entirely lacking abandonment of limits in the principle in the old and now forgotten judgments that has prevailed. Given the readiness of striking down minimum-wage and maxi-

President Roosevelt to compromise on mum-hour laws? any basis that allowed achievement of If I am right in this it helps to make a the substance of his program, might not further point that has more bearing upon the formulae of coverage employed in the current issues, that I believe it misconlegislation of the thirties have quite read- ceives the problem of the Court to state it |

ily embraced any such principles the as the question of the proper measure of Court had then been able to devise before judicial self-restraint, with the resulting

the crisis became so intense — principles issue whether such restraint is only

sustaining action fairly equal to the proper in relation to protection of a

need? I do not say we would or should be purely economic interest or also in rela-

happier if that had happened and the tion to an interest like freedom of speech

Court still played a larger part within this or of religion, privacy, or discrimination area of our federalism, given the atten- (at least if it is based on race, origin, or tion to state interests that is so inherent creed). Of course, the courts ought to be in the Congress and the constitutional cautious to impose a choice of values on provisions governing the selection and the other branches or a state, based upon the composition of the Houses, which the Constitution, only when they are per-

make that attention very likely to suaded, on an adequate and principled endure.*4 I say only that I find such spec- _analysis, that the choice is clear. That, I

ulation interesting. You will recall that it suggest, is all that self-restraint can was Holmes who deprecated argument of mean, and in that sense it always is | counsel the logic of which left “no part —_ essential, whatever issue may be posed.

415

Toward Neutral Principles of Constitutional Law

The real test inheres, as I have tried to that, we safely may predict, the Court argue, in the force of the analysis. Surely will not apply to any other field ?*?

a stronger analysis may be advanced 4, Finally, I turn to the decisions that

against a particular uncompensated tak- for me provide the hardest test of my ing as a violation of the Fifth Amend- belief in principled adjudication, those in ment than against a particular limitation which the Court in recent years has vinof freedom of speech or press as a viola- dicated claims that deprivations based on

tion of the First. race deny the equality before the law that In this view, the ‘“‘preferred position’ =the Fourteenth Amendment guarantees. controversy hardly has a point — indeed, The crucial cases are, of course, those

it never has been really clear what is involving the white primary,*? the

asserted or denied to have a preference enforcement of racially restrictive coveand over what.” Certainly the concept is nants,*4 and the segregated schools.*5

pernicious if it implies that there is any The more I think about the past the simple, almost mechanistic, basis for | more skeptical I find myself about predetermining priorities of values having dictions of the future. Would you not

constitutional dimension, as when there have thought that, viewed a priori, the is an inescapable conflict between claims invention of the cotton gin in 1792 to free press and a fair trial. It has a vir- should have reduced the need for slave tue, on the other hand, insofar as it recog- §_ labor and hence diminished the attracnizes that some ordering of social values tiveness of slavery? Brooks Adams tells is essential; that all cannot be given equal us that its consequences were precisely

weight if the Bill of Rights is to be the reverse; that the demand for slaves

maintained. increased as cotton planting became Did Holmes mean any less than this highly lucrative, increased so greatly that

when he lamented the tendency “toward Virginia turned from coal and iron,

underrating or forgetting the safeguards which George Washington envisaged as in bills of rights that had to be fought for its future, into an enormous farm for in their day and that still are worth fight- breeding slaves — forty thousand of ing for’?38 Only in that view could he whom it exported annually to the rest of have dissented in the Abrams and the _ the South.46 Only the other day I read

Gitlow cases?9 and have struggled so that the Japanese evacuation, which I intensely to develop a principled delin- thought an abomination when it hapeation of the freedom that he voted to pened, though in the line of duty as a © sustain. Even if one thinks, as I confess I lawyer I participated in the effort to susdo, that his analysis does not succeed if it tain it in the Court,*’ is now believed by

requires that an utterance designed to many to have been a blessing to its vicstimulate unlawful action must be tims, breaking down forever the ghettos accorded an immunity unless it is in which they had previously lived.*® But. intended to achieve or creates substantial skeptical about predictions as I am, I still

danger of immediate results,*° can any- believe that the decisions I have men-

one deny it his respect? Is not the force of — tioned — dealing with the primary, the

a position framed in terms of principles covenant, and schools — have the best of the neutrality and generality that chance of making an enduring contribuHolmes achieved entirely different from tion to the quality of our society of any — that of the main opinion, for example, in that I know in recent years. It is in this the Sweezy case,*! resting at bottom, as it perspective that I ask how far they rest on

does, on principles of power separation neutral principles and are entitled to among the branches of state government approval in the only terms that I

that never heretofore have been con- acknowledge to be relevant to a decision ceived to be a federal requirement and of the courts.

416 | |

Herbert Wechsler

The primary and covenant cases pres- Party, voting in a primary in which he ent two different aspects of a single prob- was entitled to participate, and the only

lem — that it is a state alone that is one in which he could.*4 Yet three years forbidden by the Fourteenth Amendment later Classic was declared in Smith v. to deny equal protection of the laws, as _— Allwright55 to have determined in effect

only a state or the United States is pre- _ that primaries are a part of the election, cluded by the Fifteenth Amendment from with the consequence that parties can no

denying or abridging on the ground of more defend racial exclusion from their race or color the right of citizens of the _ primaries than can the state, a result reafUnited States to vote. It has, of course, — firmed in 1953.5 This is no doubt a setbeen held for years that the prohibition of — tled proposition in the Court. But what it

action by the state reaches not only an means is not, as sometimes has been , explicit deprivation by a statute but also thought, that a state may not escape the action of the courts or of subordinate offi- limitations of the Constitution merely by

cials, purporting to exert authority transferring public functions into private

derived from public office. 49 hands. It means rather that the constitu-

| deal first with the primary. So long as tional guarantee against deprivation of

the Democratic Party in the South the franchise on the ground of race or

excluded Negroes from participation, in color has become a prohibition of party the exercise of an authority conferred by organization upon racial lines, at least

statutes regulating political parties, it where the party has achieved political

was entirely clear that the amendment hegemony. I ask with all sincerity if you was infringed; the exclusion involved an are able to discover in the opinions thus application of the statute.5° The problem far written in support of this result — a became difficult only when the states, result, I say again, that I approve — neuresponding to these judgments, repealed tral principles that satisfy the mind. I the statutes, leaving parties free to define should suppose that a denial of the frantheir membership as private associations, chise on religious grounds is certainly protected by the state but not directed or forbidden by the Constitution. Are relicontrolled or authorized by law. In this gious parties, therefore, to be taken as position the Court held in 1935 that an proscribed? I should regard this result, exclusion by the party was untouched by too, as one plainly to be desired, but is the amendment, being action of the indi- — there a constitutional analysis on which

viduals involved, not of the state or its it can be validly decreed? Is it, indeed,

officialdom.*1 _ not easier to project an analysis establishThen came the Classic case5? in 1941, ing that such a proscription would which I perhaps should say I argued for infringe rights protected by the First the government. Classic involved a pros- Amendment?

ecution of election officials for depriving The case of the restrictive covenant

a voter of a right secured by the Constitu- presents for me an even harder problem. tion in willfully failing to count his vote Assuming that the Constitution speaks to as it was cast in a Louisiana Democratic — state discrimination on the ground of primary. In holding that the right of a race but not to such discrimination by an qualified voter to participate in choosing individual even in the use or distribution

representatives in Congress, a right con- of his property, although his freedom _ ferred by Article I, section 2,55 extended may no doubt be limited by common law

to participating in a primary which or statute, why is the enforcement of the influenced the ultimate selection, the private covenant a state discrimination Court did not, of course, deal with the rather than a legal recognition of the free-

scope of party freedom to select its dom of the individual? That the action of , members. The victim of the fraud in Clas- the state court is action of the state, the sic was a member of the Democratic point Mr. Chief Justice Vinson empha-

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Toward Neutral Principles of Constitutional Law

sizes in the Court’s opinion,5’ is, of — principle, Black v. Cutter Labs.®* Here a

course, entirely obvious. What is not collective-bargaining agreement was so obvious, and is the crucial step, is that construed that Communist Party mem-

the state may properly be charged with bership was ‘“‘just cause”’ for a discharge.

the discrimination when it does no more In this view, California held that a

than give effect to an agreement that the worker was lawfully dismissed upon that

individual involved is, by hypothesis, ground. A Supreme Court majority conentirely free to make. Again one is cluded that this judgment involved noth-

obliged to ask, What is the principle ing but interpretation of a contract,

involved? Is the state forbidden to effec- making irrelevant the standards that tuate a will that draws a racial line, a will would govern the validity of a state statthat can accomplish any disposition only ute that required the discharge. Only Mr.

through the aid of law, or is it a sufficient Chief Justice Warren and Justices

answer there that the discrimination was Douglas and Black, dissenting, thought the testator’s and not the state’s?5§ May the principle of Shelley v. Kraemer was not the state employ its law to vindicate involved when the state court sustained

the privacy of property against a tres- the discharge.® passer, regardless of the grounds of his Many understandably would like to exclusion, or does it embrace the owner’s perceive in the primary and covenant reasons for excluding if it buttresses his decisions a principle susceptible of broad

power by the law? Would a declaratory extension, applying to the other power judgment that a fee is determinable if a aggregates in our society limitations of racially restrictive limitation should be the kind the Constitution has imposed on violated represent discrimination by the government.®* My colleague A. A. Berle, state upon the racial ground?5? Would a Jr., has, indeed, pointed to the large busi-

judgment of ejectment? ness corporation, which after all is charNone of these questions has been tered by the state and wields in many

answered by the Court, nor are the prob- areas more power than the government,

lems faced in the opinions.©° Philadel- as uniquely suitable for choice as the phia, to be sure, has been told that it may next subject of such application.®7 | not continue to administer the school for doubt that the courts will yield to such ‘poor male white orphans,” established temptations; and I do not hesitate to say

by the city as trustee under the will of that I prefer to see the issues faced

Stephen Girard, in accordance with that through legislation, where there is room racial limitation.®! All the Supreme Court for drawing lines that courts are not said, however, was the following: ‘‘The equipped to draw. If this is right the two Board which operates Girard College is decisions I have mentioned will remain, an agency of the State of Pennsylvania. as they now are, ad hoc determinations Therefore, even though the Board was of their narrow problems, yielding no acting as a trustee, its refusal to admit neutral principles for their extension or Foust and Felder to the college because support. they were Negroes was discrimination by Lastly, I come to the school decision, the State. Such discrimination is forbid- which, for one of my persuasion, stirs the

den by the Fourteenth Amendment.” deepest conflict I experience in testing When the Orphans’ Court thereafter dis- the thesis I propose. Yet I would surely

missed the city as trustee, appointing be engaged in playing Hamlet without

individuals in substitution, its action was Hamlet if I did not try to state the prob. sustained in Pennsylvania.®2 Further lems that appear to me to be involved.

review by certiorari was denied.® The problem for me, I hardly need to

One other case in the Supreme Court say, is not that the Court departed from has afforded opportunity for reconsider- its earlier decisions holding or implying

ing the basis and scope of the Shelley that the equality of public educational

418

Herbert Wechsler

facilities demanded by the Constitution embraced, citing some further ‘‘modern could be met by separate schools. I stand authority” in its support.7! with the long tradition of the Court that Does the validity of the decision turn, previous decisions must be subject to then, on the sufficiency of evidence or of reexamination when a case against their judicial notice to sustain a finding that reasoning is made. Nor is the problem the separation harms the Negro children

that the Court disturbed the settled pat- who may be involved? There were, terns of a portion of the country; even indeed, some witnesses who expressed that must be accepted as a lesser evil that opinion in the Kansas case,7? as than nullification of the Constitution. there were also witnesses in the companNor is it that history does not confirm ion Virginia case, including Henry Gar-

that an agreed purpose of the Fourteenth rett of Columbia,”* whose view was to the

Amendment was to forbid separate contrary. Much depended on the ques-

schools or that there is important evi- tion that the witness had in mind, which

dence that many thought the contrary;*®8 rarely was explicit. Was he comparing the words are general and leave room for the position of the Negro child in a segreexpanding content as time passes and gated school with his position in an inte-

conditions change. Nor is it that the grated school, where he was happily

Court may have miscalculated the extent accepted and regarded by the whites; or

to which its judgment would be honored was he comparing his position under or accepted; it is not a prophet of the separation with that under integration strength of our national commitment to where the whites were hostile to his prerespect the judgments of the courts. Nor sence and found ways to make their feel-

is it even that the Court did not remit the ings known? And if the harm that

issue to the Congress, acting under the segregation worked was relevant, what of enforcement clause of the amendment. the benefits that it entailed — a sense of That was a possible solution, to be sure, security, the absence of hostility? Were but certainly Paul Freund is right®? that it | they irrelevant? Moreover, was the find-

would merely have evaded the claims ing in Topeka applicable without modifi-

made. cation to Clarendon County, South The problem inheres strictly in the rea- | Carolina, with 2,799 colored students

soning of the opinion, an opinion which and only 295 whites? Suppose that more is often read with less fidelity by those | Negroes in a community preferred sepa- | who praise it than by those by whom itis ration than opposed it? Would that be condemned. The Court did not declare, relevant to whether they were hurt or as many wish it had, that the Fourteenth aided by segregation as opposed to inteAmendment forbids all racial lines in gration? Their fates would be governed

legislation, though subsequent per by the change of system quite as fully as

curiam decisions may, as I have said, those of the students who complained.

now go that far. Rather, as Judge Hand I find it hard to think the judgment

observed,”° the separate-but-equal for- really turned upon the facts. Rather, it mula was not overruled “in form,’’but seems to me, it must have rested on the was held to have ‘no place” in public view that racial segregation is, in princieducation on the ground that segregated ple, a denial of equality to the minority schools are ‘‘inherently unequal,’ with against whom it is directed — that is, the deleterious effects upon the colored chil- group that is not dominant politically dren in implying their inferiority, effects and therefore does not make the choice which retard their educational and men- involved. For many who support the tal development. So, indeed, the district Court’s decision this assuredly is the court had found as a fact in the Kansas decisive ground. But this position also case, a finding which the Supreme Court presents problems. Does it not involve an

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Toward Neutral Principles of Constitutional Law

inquiry into the motive of the legislature, in the situation that association is desired

which is generally foreclosed to the by the only individuals involved? I take courts?7’4 Is it alternatively defensible to no pride in knowing that in 1956 the make the measure of validity of legisla- Supreme Court dismissed an appeal in a

tion the way it is interpreted by those case in which Virginia nullified a mar-

who are affected by it? In the context of a riage on this ground, a case in which the charge that segregation with equal facili- statute had been squarely challenged by

ties is a denial of equality, is there not a the defendant, and the Court, after point in Plessy in the statement that if remanding once, dismissed per curiam “enforced separation stamps the colored on procedural grounds that I make bold

race with a badge of inferiority’ it is to say are wholly without basis in the solely because its members choose ‘‘to law.76 put that construction upon it’’??5 Does But if the freedom of association is

enforced separation of the sexes discrimi- denied by segregation, integration forces

nate against females merely because it an association upon those for whom it is may be the females who resent it and unpleasant or repugnant. Is this not the because it is imposed by judgments pre- heart of the issue involved, a conflict in dominantly male? Is a prohibition of mis- human claims of high dimension, not cegenation a discrimination against the unlike many others that involve the high-

colored member of the couple who est freedoms — conflicts that Arthur

would like to marry? Sutherland has recently described.7’ For me, assuming equal facilities, the Given a situation where the state must

question posed by state-enforced segrega- practically choose between denying the

tion is not one of discrimination at all. Its association to those individuals who human and its constitutional dimensions wish it or imposing it on those who lie entirely elsewhere, in the denial by would avoid it, is there a basis in neutral the state of freedom to associate, a denial principles for holding that the Constituthat impinges in the same way on any tion demands that the claims for associagroups or races that may be involved. I tion should prevail? I should like to think, and I hope not without foundation, think there is, but I confess that I have that the southern white also pays heavily not yet written the opinion. To write it is for segregation, not only in the sense of for me the challenge of the school-segre-

guilt that he must carry but also in the gation cases. benefits he is denied. In the days when I Having said what I have said, I cer-

was joined with Charles H. Houston in a tainly should add that I offer no comfort

litigation in the Supreme Court, before to anyone who claims legitimacy in the present building was constructed, he defiance of the courts. This is the ultidid not suffer more than I in knowing mate negation of all neutral principles, to that we had to go to Union Station to take the benefits accorded by the constilunch together during the recess. Does tutional system, including the national not the problem of miscegenation show market and common defense, while denmost clearly that it is the freedom of asso- ying it allegiance when a special burden

ciation that at bottom is involved, the is imposed. That certainly is the antithonly case, I may add, where it is implicit esis of law.

David M. Potter

Social Cohesion and the Crisis of Law

When we attempt to appraise the place holistic community. One finds this

which law occupies in any given society, assumption, for instance, in the criterion

it is a good point of departure, I believe, to that obscenity can be defined by ‘“‘prevail-

start by recognizing that the law isauni- ing community standards.” This is well form system of social control for the entire and good if there is one community that population living within a given jurisdic- coincides with the jurisdiction. But suption. Its rules apply to everyone within pose there is no community; or suppose the area of this jurisdiction. Other institu- | there are two or more separate and some-

tions may have rules which apply to parts what antagonistic communities, all

of the population — churches, for within the same jurisdiction. Then there

instance, may do so, or labor unions — can be no holistic “prevailing community and they may impose penalties for viola- standards,” and therefore no criterion for tion of their rules. But these institutions the law — perhaps no social “‘legitimacy”’

do not apply uniformly to everyone, forit. | |

while, on the contrary, the law does. This is a point to which I must return

Since the law is uniform, it will, of course, later, but first I should observe that this operate most effectively when the popula- problem does not arise in all systems of tion to which it applies is also uniform, government. Historically, even the potenor, as we might say, homogeneous. Or __ tiality of such a dilemma could scarcely conversely, it may operate least effecti- have arisen more than two hundred years

vely where the population is heterogen- ago, for up to that time legitimacy was eous. In treating the relationship of law to regarded as residing in a single ruler society, legal thinkers commonly assume rather than in a multiplicity of people — that the population, or society, to which in a unitary authority rather than in a the law applies is homogeneous — is a pluralistic one. Of course, as we all know, this theory had been modified in various Reprinted from History and American Society: | ways, by making the ruler an institution

420 |

Essays of David M. Potter (New York, Oxford Uni- ( ‘the crown’) rather than a man (“the versity Press, 1973), pp. 390-418, by permission. king”), and by avoiding the enactment of This essay was driginally presented at a symposium laws that would arouse popular hostility. organized by The Bar of The City of New York, 1970. But still, authority, and also legitimacy,

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Social Cohesion and the Crisis of Law

were believed to come from above, and so power any other combination or long as this was true, the question of what combinations of citizens. In this sense, the happened to the legitimacy of law when it principle of ‘‘consent” might become an

was vested in a society which might be ironic fiction to cover the process by deeply divided — that question did not’ which a more powerful component in arise. The kind of sanctions that would society would trample upon the deepest justify an authority as universal as that of convictions of a less powerful component.

the law seemed to be of so transcendent a ae ,

nature that men tended to attribute a There was nothing inherent in the docsupernatural quality to them — the law trine of consent itself — nothing in the was from the king and the king was from logic of the idea — which would have preGod. Such authority could hardly present vented such a travesty. In terms of theory,

problems of heterogeneity. one might say that the United ‘States

But the Americans of the late eight- became exposed almost two centuries ago eenth century broke new ground by ever- to the potentiality that conflicting popular

lastingly rejecting the idea of authority faction . might destroy t he society by

from above and by repudiating the dividing it into irreconcilable opposing ~ notions of rank which had buttressed groups, for there was no authority higher such authority. America, they decided, than the people’s own consent to restrain was to be a society of men equal in formal them. Once, of course, at the time of the

rank. Without rank, there could be no Civil War, this potential hazard became a hierarchical class of ‘‘natural” rulers, and terrible reality. But it was only once; oth-

government was specifically declared to CTWIse, for two centuries, the hazard derive its sanction (‘‘its just powers’’) remained potential only. Thus, by new from the “consent of the governed.” when divisiveness endangers our public Among the innumerable writers who policy as never before, we are 80 aces: have celebrated the advent two centuries tomed to the routines of government by ago of the principle of government by the consent and so in the habit of assuming consent of the governed, it is remarkable that consent can always be attained at how few have ever recognized that this some kind of price that we have ceased to principle contained a built-in dilemma, realize that our m echanism provides m0 and one which might have been seriously recourse for society in situations where regarded as an insoluble dilemma: when consent 1s real ly withheld. This lack of the governed include the entire body of ‘“*“COUtS® constitutes a vu Inerability m Our citizens (and even noncitizens), it is inevi- system — an acute, distincti ve, but large ly

table that they will disagree on many mat- unrecognized vulnerability — which ters and that policies which win the renders the society almost helpless in the consent of some will never gain the con- lace of divisions which cannot be Tecon- |

sent of others — perhaps of very ciled. This vulnerability is peculiar to the

numerous others. Therefore, at an opera- py seem of government by consent and 8

tive level, government by the consent of asic to the present crisis of law in a the governed really means government divided society. according to the wishes of some of the Historically, the system of government governed and contrary to the wishes of | by consent succeeded so well that we are some others of the governed. The phrase now most inclined to take it for granted, at

“consent of the governed,’ under the a time when we can least afford to take it cover of a false assumption that the for granted. At the beginning of the Amergoverned will always and inevitably be an ican experiment, there were men who felt integral body, concealed the imminent acutely apprehensive about the cohesivehazard that government by citizens might ness of a system which gave a broad fran-

simply mean government by any combi- chise to dissent and which sanctioned | nation of citizens strong enough to over- | organized opposition to the policies of the

422

David M. Potter

government. Most of the founders were plants, to a technology which could put decidedly uneasy about the danger of men on the moon and — what was even political parties, because they felt that the more remarkable — could bring them creation of parties would deepen divi- back. Naturally, we began to think that if sions in the society and would perpetuate democracy can flourish under such varied strife. Strife was generally regarded as conditions and can contribute in a signifi-

likely to tear the social fabric, and tradi- cant way to such remarkable achievetional governments had customarily ments, it must be tough, adaptable, and

sought to suppress it. Now the United resilient — not brittle or fragile after all. States was about to incorporate political Our confidence in the indestructibility strife as a regular part of the system. Not of the democratic system was strengthunnaturally, some political sages viewed ened when we saw it survive crises which

such a step with deep misgivings. Fur- other, seemingly ‘‘stronger’’ systems

ther, it was generally recognized that by might not have survived. To begin with, sanctioning a high degree of freedom for in the Civil War. more than a century ago, individual citizens, the founders were the nation faced a test of whether a demoreleasing a force which might weaken the cratic government can be, at the same claims of the community as a whole — as time, strong enough to defeat its embat- — an organism — vis-a-vis the claims of the tled adversaries and weak enough (or lim-

unrestrained individual. ited enough) to ensure that freedoms

Thus, men recognized that democracy would not be sacrificed by the very severwas a peculiarly fragile system, especially ity of the measures required to protect dependent upon the responsibility and them. Abraham Lincoln was deeply con-

self-restraint with which citizens exer- cerned with this problem, and he spoke ,

cised their freedom. Long after the Revo- very feelingly of ‘‘the necessity that is lution, pundits continued to repeat these upon us of proving that popular governwarnings and the public continued to nod ment is not an absurdity.” Before he was approval of the repetitions. But the fact is assassinated, he knew that the governthat after a time, while still affirming ment of the Union — a democratic govthese propositions ritualistically, we ernment — had vindicated itself, and that ceased to believe them. One may say that Old World critics could never again speak the system worked so well that it inspired with their former confidence when they faith in democracy, or one may say that said that a republic might be all right in , America got along so well under the sys- _—times of tranquillity but that it would fall tem (which is by no means the same apart at the first real test of strength. thing) that people ceased to worry about Eight decades after the Civil War, the it. Certainly the United States, under the “inefficient”? and hopelessly civilianized

Constitution of 1787, did grow with American democracy administered total incredible rapidity in area and in popula- defeat to the most “‘efficient’”’ and power-

tion. It experienced a total economic ful military machine that the world had transformation from a land of small farm- ever seen up to that time. Meanwhile, on ers, producing food for their own use, to many fronts — industrial, and technologi-

what some social analysts call a postin- cal, and scientific — the country had

dustrial society, with the immensely com- passed from triumph to triumph in a way plex and interdependent economy which — which further assured Americans of the we have today. Democracy survived this invulnerability of their system. transformation. It survived the transition Yet, all the while, we had been operatfrom a horse-and-buggy technology based ing on a principle of government by con-

on the muscle of men and animals, the sent, of which it might plausibly be said

power of wind in a sail, and water in a ___ that the reason we trusted it so completely

waterwheel, and heat from fossilized was that we had never taken the trouble to

423

Social Cohesion and the Crisis of Law

understand it. When we thought about it On the contrary, many contests have been

at all, it was usually in the simplistic waged with heat and acrimony over

terms of ‘‘majority rule.” The consent of issues that were felt to be fearfully urgent.

the governed, operationally, we thought For instance, in the struggles between was the will of the majority, and even Thomas Jefferson and Alexander Hamilwhile upholding individual rights and ton, Jefferson felt that he was saving the freedoms, we have been chronically obli- country, as he expressed it, from ‘“‘monar-

vious to the contradiction between the chism and militarism.’ After Andrew

principle of majority rule and the princi- Jackson’s conflicts with the Bank of the ple of individual rights, just as we have United States and with the South Carolina

been uncritically susceptible to such nullificationists, Jackson is said to have unsophisticated corollaries of the majori- expressed regret, when he left the White tarian fallacy as the “‘one man, one vote”’ House, for two pieces of unfinished busi-

slogan. But as almost everyone would ness — he had neither shot Henry Clay

recognize, if he would only stop to reflect, nor hanged John C. Calhoun. In 1884, the process of government in the United when Grover Cleveland was being nominStates has never been one of an omnipo- ated for the presidency, one of his nomin-

tent majority imposing its will upon a ators declaimed, ‘“‘We love him for the defenseless and unresisting minority. enemies he has made.”’ So, we must cerRather, the process has been one by which tainly recognize, many of the contests the majority and the minority arrived at were real, and many of the rivalries were

an understanding — not necessarily an intense. Also, as Richard Hofstadter

amicable one, and indeed usually an asserted, many of the issues — the Ameriarrangement by which the majority set- can Revolution, the Civil War, and many tled for less than it wanted to attain and ethnic and immigrant divisions — reprethe minority yielded more than it wanted sented conflict of the most genuine kind.

to concede. Both accepted terms with But if the principle of consent did not which they were not entirely satisfied. mean the elimination of conflict, what it While actual coercion was avoided, heavy did mean was that conflict should be lim-

pressure was frequently used, but even ited. Adversaries might pit all their

when pressure was heaviest a kind of strength against one another, but they | understanding was involved, and this was would not engage in remorseless attempts

what was meant by government by _ to destroy one another. There are many

consent. ways in which we have shown our pur-

I doubt whether. history or political pose to avoid struggles leading to politiscience has ever done full justice to the cal extermination. The provisions in the subtlety and also to the pervasiveness of | Constitution against ex post facto laws the arrangements by which the principle and bills of attainder are pertinent examof consent — seldom totally voluntary, ples. But far more telling, perhaps, is the seldom entirely coercive — was woven habitual pattern of our political contests into the fabric of our institutions. Politi- | — notably our presidential elections. Durcally, consent did not mean what we now _ ing these quadrennial episodes, the elesometimes mean when we speak of ‘‘con- ment of conflict has customarily been

sensus,’ and if my interpretation here highly conspicuous. Almost every elec-

should be damned as “‘consensus his- tion was hotly contested, and if there were tory,” at least it is not consensus history of | no important issues involved, the heat of the orthodox kind. Consent did not mean _ the contest might be even more intense. either bland agreement on all questions or §_ Rhetoric, customarily, became very

a decision to confine public dispute to highly charged. Both parties talked big nonessential or trivial questions. It did | and denounced each other most abusinot mean that there would be no conflict. vely, and it was not unusual for one party

David M. Potter , 424

to claim that if the rival party were elected and to avoid going very far to the right or _ it would be the end of republican govern- very far to the left. This made it easier for ment in the United States. Men made fren- them to reach accommodations with one zied efforts to gain electoral victory, as if | another. So long as this relationship pre-

the future of mankind were at stake. vailed, it was always possible to evoke a But after the election was over, what spirit of unity between the parties as well happened? We all know the scenario. The _as to rouse angry strife between them. In loser would send his congratulations to _—_ fact, this dualism became, as I have sug-

the winner; the newspapers which had _ gested, almost a ritual in which the parsupported the loser would begin to pub- ties were expected to assail each other lish more flattering pictures of the winner vigorously in election campaigns, but than they had published during the cam- _—snever so vigorously that they could not be

paign. One or two members of the losing reminded, after the election was over, that

party, after what we may call a decent what they shared as Americans far

interval, might agree to take positions in | outweighed what they disagreed about as

the new administration. When the Con- party members, and that the president,

gress met, the majority party would assign |§ once elected, ceased to be merely a partia certain number of places on each com- san leader and became president of all the

mittee to be filled by the minority party. people.

They would do this as a matter of course, Thomas Jefferson was the first President without even discussing whether ornotto _ to articulate this view of our political sys-

do so. Pretty soon they would be busily tem, and no President has ever stated it working out legislative compromises in better. At his first inaugural in 1801, Jef-

the cloakroom while hurling rhetorical ferson, addressing himself to both his thunderbolts at one another on the floor. supporters and his recent adversaries,

In fact, the very structure of the parties | stated a profound truth — a truth that was

themselves reflected this pattern of lim- valid on several levels — when he ited conflict, for the traditional two par- declared, “Every difference of opinion is

ties of American history — Federalists not a difference of principle. We have versus Jeffersonians, or Whigs versus called by different names brethren of the Democrats, or Republicans versus Demo- same principle. We are all Republicans; crats — have been very unlike the ideolo- _—_— we are all Federalists.’’ At the lowest level

gically ‘‘pure”’ splinter parties which have this meant that each party constituted a arisen so often in CGentral and Western kind of brokerage house, and that the broEurope. The ideological parties have con- = kerage houses can, as the phrase goes, ‘“‘do

sisted of adherents from only one segment business” with one another — a little of the political spectrum, united in sup- opportunism along with the principle. At port of one particular doctrine, rather like a higher level, it meant that once the consmall religious sects in this country. But _ test was over, both parties would abide by the American political parties have been the results of the contest, and the country coalitions of conservative southern Demo- would be spared the disruptive consecrats and reformist northern Democrats, quences of an endless feud. As Jefferson or in the first half of the present century, himself expressed it, since the ‘‘contest of

of standpat Republicans from the East and opinion” had been “now decided by the

progressive Republicans from the West, voice of the nation ... all will, of course, working together more or less reluctantly arrange themselves under the will of the

and with more or less internal friction. law and unite in common efforts for the

Since both parties represented a coali- common good. All, too, will bear in mind tion of men of diverse views, it followed this sacred principle, that, though the will that neither party was ideologically very of the majority is in all cases to prevail,

different from its rival. Both tended to that will, to be rightful must be reason-

take what are called ‘“‘moderate” positions able; that the minority possess their equal

| 425

Social Cohesion and the Crisis of Law

rights, which equal law must protect, and indulged in shameless bargaining, and to violate would be oppression.’’ At the thought more about how to win elections highest level of all, the principle of con- than about what to do with the elections sent was based not only on a contract, but they had won. “What are we here for,”’ upon the recognition of a reality. The real- asked a delegate to the Republican con-

ity was that areas of agreement were vention of 1868, ‘‘except the offices?”

always present among the American peo- Further, to mention a more serious flaw, ple — that these areas were more impor- the principle of consent exaggerated one tant than the areas of disagreement, which of its own chief virtues into a vice. The were also always present, and that there- virtue was the principle of compromise. fore the factors of union and cohesion The willingness to compromise was what must take priority over the factors of dis- enabled adversaries to get along with one

sension and disruption. This prepon- another even when they disagreed. Comderance of factors shared in common was promise of all kinds — between large what made it possible for Americans to states and small states, between slavery maintain a system of consent, even and antislavery, between mercantile interthough limited conflicts over specific ests and planter interests, between advoissues were always being waged. cates and opponents of national power — It had been a quarter of a century earlier was what made ‘‘a more perfect union”

that Jefferson had coined his immortal possible in 1787. Great compromises

phrase about governments deriving their again — in 1820, in 1832—1833, in 1850,

just powers from the consent of the and finally at the expense of the blacks, in

governed. I would suggest that in the pas- 1877 — had either avoided or liquidated

sages I have just quoted he was at last major crises in the republic. Partly

defining what ‘‘consent of the governed”’ because of this experience, compromise really meant. It meant, above all, that con- was almost sanctified, and men who

flicting parties would constantly rejected compromise were often written

remember that they could be adversaries off as ‘‘fanatics’’ or ‘‘zealots’’ who refused without being enemies, would observe the ‘‘tolerance’”’ and the “‘give- and-take’’

the distinction between differences of of the American way. At times it seemed opinion and differences of principle, and that there was no principle which could

would work out more or less voluntary not be compromised if the parties to solutions to their differences of opinion, the transaction were sufficiently

recognizing the obligation of the majority “reasonable.” |

to respect the rights of the minority and The greatest flaw of all in the system of the obligation of the minority to respect consent was one that was perhaps least

the popular mandate held up by the recognized. The system had a fatal ten-

| majority. dency to bring in those who could be conSuch, as it appears to me, was govern- veniently included, but if there were

ment by consent — a system which pre- groups whose voices would not harmovailed in the United States for well over a nize, it practiced the brutally simple expecentury, and which is not yet terminated, dient of denying them a voice altogether. though it is, I believe, badly impaired. As These excluded groups were just not we look back at it, we are apt to romanti- regarded as, in the terminology of the cize it, and indeed I may have idealized it sociologist, ‘‘significant others.’ Thus the somewhat in my description here. There- American Indians were denied a voice. fore, I must point out for the sake of veri- Negroes , both slave and free, were denied

similitude, as Mark Twain used to say, a voice, Also, occasional strong efforts that the system had some rather unlovely were made to deny immigrants a voice. features. Sometimes, in the quest for The denial of a voice to immigrants never accommodation, it reduced principles to succeeded in a formal sense, but, realistic-

such a negligible point that parties ally, many immigrants were made to

426 ,

David M. Potter

understand that they were on probation of a birch rod in the school or of militia in and that, if they behaved themselves, their the streets. We even construct our buildchildren might be admitted to full mem- ings in a way which suggests our faith bership in American society. Strange as it that people will accept the prevailing may now seem, for many of them this was practices of the society without any enough, and they gave patient support to duress to compel them to do so. In the a system in which they occupied a very past, tellers in banks sat guarded in little

marginal position. metal cages, but we have taken them out These major faults in the system of con- of these barricades and placed them

sent cannot and should not be extenuated, behind low counters in rooms designed to and indeed they were so serious that they look as little like a countinghouse as pos-

might be regarded, in the eyes of some sible. In the past, honest burghers built

critics, as completely vitiating the entire | their houses with heavy, solid shutters at structure. I certainly do not want to ideal- =the windows to repel marauders, but ize it. I would not conceal the fact that | today we have turned to building and liv-

compromise was often given a priority ing in glass houses whose walls can be

over principle, harmony over morality, shattered with a small stone. Where loans and agreement over clarity of decision. I were once granted only in return for forwould not gloss over the fact that shame- midable mortgages, we now flood the less bargaining and relentless arm-twist- mails with unsolicited cards extending ing were frequently employed to secure credit with a bounty so overflowing that it

agreements in situations where direct sometimes extends beyond adults to

coercion was taboo. But with all its faults, infants, deceased persons, and domestic the system allowed for a measure of inter- animals. In place of compulsion we sub-

nal criticism and dissent such as few stitute agreement, but this substitution

societies have known, and it reduced the makes the necessity for agreement truly factor of direct physical coercion to about vital, so that when an important issue is in

as low a point as is possible in a complex dispute, we are obsessively concerned and highly structured society. In fact this that the negotiations that may lead to avoidance of coercion was the chief glory | agreement shall never stop. The cessation

of the system, and the devices for obtain- of talk means crisis, and negotiations ing consent were important primarily must go on, day and night. In a govern-

because they made the avoidance of coer- ment by consent, the default of consent is cion possible. To an astonishing degree in the paralysis of authority. America, public affairs have been con-

ducted on a basis that nothing could be Such was the system of government by done until it had been put into a form ~ the consent of the governed that prevailed such that the opposition could be induced in the United States for about two cento agree to it. The use of the filibuster in turies. It never meant consent in the sim-

the Senate, the copious devices for ple sense of spontaneous agreement by

obstruction in both houses of Congress, everyone. Sometimes the minority blackthe bicameral system itself, the arrange- mailed the majority, and sometimes the ments for checks and balances, have all majority put intolerable pressure upon the contributed to make it virtually impossi- minority. Always certain disadvantaged ble to enact a federal law if an opposition groups were disregarded and left out. But group of appreciable size is irreconcilably withal the fact remained that the majority

determined to prevent it. refrained from pushing the minority to

But this emphasis upon more or less the point of actual resistance, and the voluntary consent is by no means con- minority recognized an obligation, at a fined to the political sphere. Throughout — certain point, to abide by the terms of a _ the society, we regard the use of force in —_ settlement which they did not like — not

almost any situation as a confession of an obligation to approve of it or even to moral failure, whether it involves the use agree to it, but at least to acquiesce in it, or

427

, Social Cohesion and the Crisis of Law as we say, ‘“‘to go along” with it. Within strong, and sometimes relentless, the this framework, men enjoyed remarkable pressure toward conformity has been. opportunities to oppose the existing They have deplored its effects in stunting authority and to dissent from prevailing the growth of individualism and creatiopinion. This system could operate with- vity, and even in making a travesty of out producing crises of social disorder freedom. Many of these criticisms are because it was understood by all parties quite justified, and I would not gainsay concerned that after the dissent had been them. But they have already been stated heard and the issues had been canvassed, over and over again with skillful insight an arrangement would be worked out and with strong emphasis. At the same which the majority could accept as good time, certain other aspects of social conenough and which the minority could tol- formity have been relatively neglected,

erate as not utterly bad. , except by some sociologists.

When the matter is viewed in this way, To begin with, it has been poorly one might suppose the principle of con- |= understood that conformity has an sent succeeded simply because of the important constructive function, esperationality or the tolerance of the Ameri- cially in a society which avoids the use | can people — because men were logical of physical force or coercion. Every socienough to appreciate the philosophical ety has to have ways of coordinating the

elegance of this beautifully balanced activities of its members, and this means political device and tolerant enough to that it has to have ways of inducing indicherish the mutual concessions by which viduals to behave in ways in which they

the invocation of force majeure was may not wish to behave and to do things avoided. But in fact human behavior is which they would prefer not to do. This seldom this reasonable, and the ways and __ is almost what we mean when we speak

means by which society induces its of civilization. Some of the modes of

members to do what is expected of them inducing such behavior are quite formaare never this voluntary. Government by lized, and we have the law, the courts,

consent may have succeeded partly the police, and the prisons. But on the

because men recognized that submission whole, American society has relied less to the majority is the price of democracy on formal authoritarian devices than and that compliance with society’s basic almost any important society in history, creed is the price of freedom within the and the force of law, for instance, has context of that creed. But it succeeded derived more from its claim to embody less for these reasons than for two others: society’s concept of justice than from its first, the American people were remark- threat of penalties. ably homogeneous and were well aware In this situation of minimal direct coerthat the values which they shared were cive control, conformity has imposed the far more important to them than the val- coordinating arrangements in American

ues on which they disagreed; second, society which authority has imposed in government by consent did not abolish other societies. Our society demands

the principle of authority — instead it ‘cooperation’ with the community

substituted the equalitarian authority of rather than ‘“‘obedience” to the rulers, but the community as a whole for the hierar- both ‘‘socialize”’ the individual to behave

chical authority of a designated ruling as his society expects him to behave.

class. It accomplished this transition by Erich Fromm has expressed the essence making conformity rather than obedience of socialization in an elegant and subtle

the device by which authority was formulation: ‘In order that any society

enforced. may function well, its members must

Social critics from Tocqueville to the acquire the kind of character which present have, of course, given a great makes them want to act in the way they deal of attention to conformity in Ameri- have to act... They have to desire what can life. They have pointed out how objectively is necessary for them to do.

David M. Potter , 428

Outer force is to be replaced by inner pretending that it is one. I recently heard

compulsion.” , a university administrator, in the midst This is, I think, a perfect statement of | of a campus crisis, state: “This disruption

what conformity is all about. But men in —_—- will end when the community decides

Jacksonian America anticipated Fromm _ that it must end, and no sooner.” Of by a century with a less learned but no course, a public leader must assume the less perceptive, formulation. With a kind existence of a community, for, without of subtle crudity they asserted “this is a | one, there is nothing for him to lead. free country, and every man does as he Also, sometimes, by a moving appeal, it

pleases, and if he don’t, we make him do is possible to invoke a spirit of commuso.” This, too, was conformity, and, as I _—nity. But in realistic terms the question have suggested, I feel that scholars have was not whether the community would

not given enough attention to the social decide; it was the question whether a function of conformity in an antiauthori- |§ community existed to decide — whether

tarian society. , the aggregate of people in the situation But if they have neglected the function was enough of a corporate group to be of conformity, they have neglected even able to reach a collective decision.

more the means by which conformity Because of this practice of confusing was enforced. It is, I believe, partly actual community with mere physical

because we have never adequately recog- propinquity or formal membership in a nized what these means were that we fail particular institution, it may be worth

to understand today why values which, pausing to ask how the demographic, as recently as a decade ago, appeared to economic, and social circumstances of a

rest upon granite foundations have sud- earlier America contributed to the

denly proved vulnerable to basic attack. process of community formation. Briefly, In brief, I would argue, conformity, and let us consider the situation a century _also the whole system of government by _ ago. At that time 34,427,000 Americans consent and law by consent, were based lived in rural areas, or in cities or towns upon the sanction of community senti- of less than 100,000 population. Another

ment. But this statement can have no 4,128,000 lived in cities of between

meaning until the term ‘‘community”’ has 100,000 and 1,000,000 population. There meaning, and the term ‘‘community”’ is were no cities with more than 1,000,000. one of the most loosely used words in the This is to say that demographically about _ language. If the etymology is to count for 88 percent of the population was distri-

anything, a community ought to mean an buted in a great multiplicity of small aggregate of people living in propin- clusters of people. There were in fact 611 quity, who share the same basic values, towns with between 2,500 and 25,000 attitudes, and outlook upon their social population. There were only 14 cities of and physical environment. In brief, we over 100,000, and only 2 over 500,000. might say that they share a common cul- These clusters of population were ecoture. But we all, apparently, have a ten- nomically tied together by a network of dency to believe that any aggregate of railroads, rivers, and canals, and they people living in propinquity ought to — were politically unified by national polithave these shared qualities, or wish that ical parties, a strong but much limited they did, and therefore we have gotten national government, and a strong spirit

into the habit of speaking of any loca- of American nationalism. National

lized aggregate as a community, whether church organizations and publishing

this aggregate has any shared values and houses, with a small but nationally distriattitudes or not.Thus we beg the question buted market, gave a limited degree of

of whether it is a community, and we centralization to religious and cultural

sometimes try to make it a community by life—or at least the more elite and self-

429

Social Cohesion and the Crisis of Law

conscious aspects of cultural life. But by borhood — which emphasize the permodern standards America’s towns and sonal bond of relationship among their villages were remarkably isolated from —= members and the loyalties of one for all

one another. America’s system of roads and all for one.

and automobiles was still more than half The strength and cohesiveness of the a century in the future, and the only communities of this world we have lost practicable way to make any journey of are so well recognized that there is no more than a hundred miles was to go by need for me to dwell upon them. In fact

rail. Electronic communication was even they may have been too much sentimen-

more than half a century away and the talized and exaggerated. But there is a chief medium of public communication further point, quite crucial to the concept

was the local newspaper. Even the of consent, which I believe has not been

smaller towns had their own dailies or _ sufficiently recognized. This is the fact weeklies, with no national columnists __ that the traditional community was a pre-

and no syndicated news, and with a clusive community. As I have observed, remarkable degree of self-sufficiency. it certainly did not lovingly embrace _ The local editor, the local clergyman, the everyone and draw together all the local political leader were not oversha- human beings within its orbit. It resdowed by the quick accessibility and the _tricted active participation to the “signif-

technological dominance of the cities. icant others” and it openly excluded Population clusters of this kind tended Negroes, slighted immigrants, and made

to form strong cohesive communities. life difficult for any square pegs which Their spatial isolation defined them as did not fit into the round holes with units. Their small size was conducive to which the society was equipped. But a high degree of personal acquaintance even for those who were excluded, the and frequent contact among the people. community exercised such a strong graThe limitations of their technology inten- vitational force that though they had sified their cohesiveness, for the orbit of been rejected, they usually displayed social interaction was effectively circum- compulsive impulses to qualify as scribed by a circle whose radius was the insiders by adopting the values and the distance that a person could conven- behavior of the insiders. For instance, the iently walk (or, if a farmer, drive his few Negroes who had attained middlewagon) to the corner grocery, to the class status rejected Negro mores and

neighborhood school — which really was zealously imitated the follies as well as a neighborhood school — or to the drug- the values of white middle-class life. The gist a few blocks away. Their orientation outsiders were culturally assimilated to the physical environment gave them a though not accepted as insiders. To state

good bit in common, for in a society this another way, they gave their alle-

which still relied primarily upon agricul- giance to the dominant community, and ture and did much of its work outdoors, this meant that there could be no competthey shared a common concern with the ing community.

weather and a common adjustment to Of course there have always been dis-

nature — to the phases of the moon, the senters — men who did not want to pay rhythm of the seasons, the fatefulness of __ the price of community membership. It is

drought and flood and untimely freezes. possible to identify a few of these in The social institutions which flourished almost any community, and American within a population cluster of this kind _history is rich in its record of dissent. But also greatly reinforced the cohesiveness in the traditional community which I of the cluster itself, for they were what have been trying to sketch out, the outthe sociologists call primary institutions look for a consistent dissenter was bleak.

— family, church congregation, neigh- The community frowned upon his

430

David M. Potter

deviance, and it had a whole arsenal of government and law. It is true, no doubt,

social weapons, ranging from social that political philosophy encouraged

snubs to outright ostracism, with which both the forbearance of majorities and the to whip him into line. It could easily iso- acquiescence of minorities, both of which late him, and make him feel his isolation, are essential to a consensual system. But because the population of the community the very notion of majorities and minori-

was small and did not provide enough ties is meaningless without the concept dissenters to form a socially self-suffi- of a whole — a community — of which cient group (or rival community) of their majority and minority are both parts.

own. As for other dissenters in other What, after, all, is a majority? It is a

communities, the dissenter might get number greater than half, just as a minorsome meager psychological support from ity is a number less than half. But this

reading what they had to say (Elbert Hub- must mean more than or less than half of bard, H. L. Mencken, Brann the Icono- a whole. If a large number tries to control clast, Bob Ingersoll), but they were too a smaller number, and they are not parts remote to protect him from the dreadful of a whole but are separate peoples, we anxieties of the socially isolated. He | regard the control as tyranny. If they are could not join them in the togetherness parts of a whole, and the whole is a com-

of sit-ins, be-ins, or marches on Washing- munity, then, under the doctrine of ton. His lot was a lonely one, and indeed majority rule and consent of the

the brooding spirit of loneliness which governed, the control, if it does not viopervades nineteenth-century American late basic individual rights, is legitimate. literature may be a reflex of this loneli- It is hard to say precisely why the fact of

ness of the dissenter. community makes such a vital difference. Thus the community was not only but it must be partly because of a recog-

holistic in the positive sense of being _ Hition that the community is more or less strong, cohesive, and integrated, but it homogeneous. Perhaps it 1s only a restawas monolithic in the negative sense of tement of this same point in a more speinhibiting the development of social cific way to say that there is a recognition units which might deviate from the pat- that the values on which the members of

terns of the dominant community. The the community agree are more important basic American social structure until to them than the matters on which they nearly the middle of the present century disagree, and therefore that the matters of

was a world of tight and tiny local com- disagreement must be subordinated to munities, heavily insulated against exter- the matters of agreement, which means nal influences, but strikingly resembling that conflict over the matters of disagree-

and strongly reinforcing one another ment must be limited. because of their generally homogeneous Fundamentally, there are two ways of character. Such communities exercised a looking at the system of control by commonolithic cultural control over all who munities, whose outlines I have tried to

lived within their orbits. Men who sketch. From an adverse point of view, it

marched to the beat of a different drum- can be regarded as a system of majorimer paid a high price for their singularity tarian control by a dominating group

and were therefore few. which demanded blind conformity and used the informal penalties of social dis-

It was the fundamental structuring of approval and isolation to exercise a coerAmerican society into such communities cion just as forcible as the authoritarian

that formed the functional basis for an control of an earlier time, which had informal system of conformity, and it was used flogging, ear-cropping, and impris-

the prevalence of the system of confor- onment to exercise a more naked coer-

| mity that made possible the formal sys- cion. This is a view with which all the tem of consent as the basis for most vociferous critics of conformity and

431 , Social Cohesion and the Crisis of Law

the Establishment would agree. On the These aggregates formed communities other hand, it can be regarded as a sys- which were homogeneous with one tem which encouraged men to comply another, strongly cohesive, and equipped with accepted standards of decent behav- with the means of inducing virtually ior, to recognize the importance of the everyone in the aggregate to accede to © values they shared, to settle their dis- the decisions of the dominant elements— agreements with a minimum of strife, decisions which were in turn modulated and to operate their society with a mini- by the right of those who were acceding mum use of force. It also encouraged to demand certain concessions. Most of them to base the legitimacy of law upon all, communities of this kind were able to public consent. No matter which of these monopolize the field of social organiza-

views one adopts, it is clear that the tion in such a way that no effective com-

power of community sentiment was cru- munities incompatible with the standard cial, and that such sentiment was not type of community could be created. The generated by just any kind of community. consent that followed was not really the

It was generated by somewhat isolated consent of millions of individual per-

and autonomous communities which sons; it was the consent of many

were more or less homogeneous to begin hundreds of individual communities. But with, and in which particular factors of what I would contend further is that the

size, technology, primary institutions, traditional kind of community has and general orientation strengthened the deteriorated or even disappeared. As it

cohesive effect. . has done so, it has left the field open for

To say this is to say that if this particu- the emergence of a variety of different lar kind of community disappeared, the kinds of communities — each with somemeans by which the consent or confor- thing of the strength, cohesiveness, and mity of the reluctant was procured might self-sufficiency which result from _perdisappear also, and with it the sanction sonal association and shared values. But for the kind of government and the kind these new-style communities, far from of law which a system of consent makes being traditional or standard or homo-

possible. It is to say further that the geneous with one another, frequently unique vulnerability of a consent society, hold values in conflict with one another’s

of which I spoke earlier, would be — even values antithetical to one

exposed, and that many of the institu- another’s. In a social structure of conflicttions of the society would be revealed to ing communities, there is no longer a

have no defenses. They would be sanction for consent, and the whole sysexposed to assault—both verbal and tem of law and government based upon physical assault, since this country has consent faces a supreme crisis.

largely renounced the kind of coercive It is almost too well known for me to legal controls with which most countries go into any detail about what happened

still defend their institutions. Being tg the nineteenth-century constellation of based upon the assumption that any = more or less autonomous, small commuopposition from within will always be nities. The automobile multiplied manylimited opposition, and that any internal fold the radius of men’s mobility. This issues are always negotiable, the system —_—fact itself destroyed countless cherished

of consent provides no mechanism for = ¢gmmunity institutions. It also greatly the contingency of unlimited opposition — increased the distance between men’s

and nonnegotiable issues. work and their homes, and thus began to

shatter the integration of both their perWhat I am contending here is that the sonalities and their lives. Technological

system of consent succeeded historically changes reared secondary environbecause the American people lived in ments—the office, the university, the population aggregates of a certain kind. ghetto—which stood between man and

432 |

David M. Potter the primary environment. These secon- But these changes are well known, and

dary environments diminished the what I would like to focus upon is a less

shared experience which exposure to the recognized and perhaps more important primary environment had offered. They aspect of this revolution in the patterns also made possible the concentration of of social relatedness. This is a change in large populations in cities. By 1968, 63 the scale of society, which has destroyed percent of the population of the nation the power of traditional communities to lived in places of more than 250,000 pop- control dissenters by isolating or ostraulation. The impersonality of city life, in cizing them, and has now given to those turn, gave men an anonymity which was who reject or are rejected by the commu-

sometimes welcome, sometimes unwel- nity a power to form communities of

come, but, in either case, which relieved their own. This change is vital, because them of the personal impact of social when the traditional community loses its pressures and social expectations. At the power to deny the blessings of social

same time, city life was more secular relatedness to those who reject it, the

than the church-oriented life of the rural principle of social control by communi-

community, and this secularism ties is left with no effective means of

encouraged a skepticism in the higher enforcement. learning —a skepticism that began to The readiness with which alienated or strip away the mystique with which a nonconformist groups can now form

religious society will always sanctify its | communities of their own is cogently civil institutions: the Constitution, the suggested by a comment of Daniel Bell’s flag, the majesty of the law, the mandate in the spring 1970 issue of The Public

of the people. Interest. Bell asks how many constitute By the 1950s, the solidarity of commu- the ‘“‘mass”’ of the radicals, and he cites

nities was fractured, their cohesion was Fortune surveys which indicate that as diluted, and their power over individuals many as 30 percent “‘in the elite schools’’ was but a shadow of what it had been. As may be significantly radical. But then he patterns became diffused, the processes adds: ‘‘A more important consideration,

of socialization for children became however, and a crucial one for all our

blurred. Boys who had identified fairly problems is less the percentage than the _ readily with fathers who plowed a furrow change of scale. In an arena of ten thouon the farm could not take their cues so sand students, five percent comes to 500,

readily from fathers, who were away and these can form a powerful striking

most of the time, engaged in incompre- force.” ,

hensible work at places which one had No doubt this is true, but the power of never seen. Boys and girls whose sex the striking force which they can form is

roles were no longer codified all too fre- perhaps less important than the strength

quently wound up feeling uncertain of the community that they can form. A about their identities. Communities were community of five hundred is large divided in voice, bewildered by the enough to give the person who joins it a rapidity of social change, bullied by sense of belonging, large enough to pro‘experts’ who told them what to believe, tect him against the snubs and slights and silenced by the voices of the elec- and disapproval of the larger society, tronic media, which came from the large enough to isolate him from outmetropolis and to which they could not groups, as all communities do with their talk back. As instruments of social con- members. Five hundred strongly cohetrol, communities became faint shadows sive people can devise standards of dress, of what they once had been. They could speech, and belief for their own group, no longer speak to the dissenters in tones and impose these as rigidly as if they of authority, nor could they monitor the were the most orthodox of conformists.

behavior of deviant individuals. | David Riesman has touched this point

, 433

Social Cohesion and the Crisis of Law

rather effectively in his observation that whose relation to the traditional commu‘the Bohemians and the rebels are not nity is as negative as their culture is neg-

usually autonomous; on the contrary, ative toward the traditional culture, and they are zealously tuned in to the signals if we are to speak of contracultures or of a defiant group that finds the meaning countercultures, we might as well speak of life in a compulsive non-conformity to of contracommunities and countercom-

the majority group.” munities. It is such social entities as

We still speak of the bohemians and these which now withhold the consent the rebels as dissenters, which means which has been vital to our noncoercive that we are still held in the grip of the | society and which thus present a chalillusion that there is one “community” lenge to the legitimacy of law such as which includes everyone except those this basic institution has never before who opt out and float about as displaced § faced in America.

persons on the margins of society. But the fact that large numbers of people, liv- In sum, we have lived for some two ing in propinquity, on campuses, in com- centuries in a society which has minimunes, in bohemias, or whatever, may mized the use of physical compulsion at share common values and even impose all levels and has used less compulsion

standards of conformity upon their than almost any society in history.

members means that these people are not Socially we have abandoned chastisedissenters at all. Rather, they are con- ment for children, both at home and in forming members of new kinds of com- school. We have abolished, in law and

munities — not only new kinds of almost in practice, the domination of

communities, but communities which are husbands over wives. We have operated committed to a cultural separation from with a Congress in which it has remained

communities of the standard kind. To almost impossible to enact a law to embark on an extended scrutiny of these which a handful of senators are deeply

new social organisms is beyond the and irrevocably opposed. We have

scope of this paper, for all that we are operated with a court system in which immediately concerned with here is the there is no good way to induce the impact of these changes upon a system of accused to let his trial proceed if he is

law based upon consent and uniformity. not willing to let it proceed. The unanimBut the fact that they are communities, ity with which, in the past, accused per-

and communities of a special kind, is sons accepted this system was so total

beginning to be recognized. J. Milton that we were not even aware of the naked Yinger has already written about what he vulnerability of the courts until the Chicalls a ‘‘contraculture,’’ and Theodore cago Seven disclosed it to us. Roszak about a ‘‘counterculture.”’ The Having rejected compulsion as a means ‘spirit of Woodstock”’ is a manifestation of social control, except in the cases of

of an urge toward community in these punishment of palpable felons whose new groups. This spirit in some ways is offenses were condemned by almost

very different from the spirit of tradi- everyone, we became desperately depentional communities. For instance, the tra- dent upon “agreement’’—perhaps under

ditional community was highly pressure, perhaps reluctant, perhaps

structured by a network of explicit com- secured by bullying or bartering or bribmitments and loyalties binding individu- ery, but still with some measure of volunals to one another in an intricate cohesive tarism or at least acquiescence in the pattern. The spirit of the commune is result. Since agreement was the alterna-

much more an unstructured diffuse sense tive to deadlock and paralysis, we

of “love” toward everyone in general and became compulsively addicted to negoti-

no one in particular. But in many ation. I suppose that most legislation is respects we have new communities negotiated before it is enacted, and that

434

David M. Potter

more legal disputes are negotiated than Thus we approach the answer to a are ever brought to trial. In important dis- question which most people never recog-

putes in the area of labor relations, we nized as a question and to which those insist, above all, that the parties must who did recognize it hoped never to have never stop talking, and, if the matter is to learn the answer. What happens to law urgent, they must negotiate around the based upon the norms of the community clock. Since our only truly instrumental if there is no prevailing community but device for resolving disputes is by talk, only a multiplicity of conflicting commuthe prospect that the contestants might nities? What happens to the principle of actually quit talking is too awful to con- = consent if the social structure has no template. Agreement or what passes for center which can even speak the voice of

agreement must be reached, because if consent?

agreement fails, our system offers no The answers are far from clear. But per-

recourse. haps it is important to remember that For two centuries this system of gov- while consent requires what Richard Hofernment by consent operated, sometimes stadter has called an attitude of comity creaking loudly, sometimes brought to a on the part of conflicting parties, and dead halt, sometimes imposing injustice while even minimum comity seems unat-

and hardship upon groups who were tainable in many confrontations today, forced to the mockery of pretending to still the principle of consent was never accept by agreement what they were predicated upon the idea of bland agreecompelled to accept by irresistible pres- ment and readiness to avoid issues for sure. But on the whole the system the sake of superficial harmony. It was worked reasonably well, not because it predicated upon the idea that adverse was intrinsically workable, but because parties can limit their conflict, and can the dominant communities wanted it to recognize the values they share, even work. People truly regarded the points on while contesting the points on which which they agreed as more important they disagree. Whether the communities

than the points on which they disagreed. and countercommunities of America in When they did disagree, it was as adver- the 1970s may be able to hold such a bal-

, saries and not as enemies. We were “all anced view in the heat of the antago-

Republicans and all Federalists,’’ and for nisms and extremisms that now prevail is all its imperfections the operation of the questionable indeed. But if it is possible system might well have gratified Thomas to contest social issues without destroy-

Jefferson. ing essential institutions, it will have to But today we face confrontations with be done by the difficult feat of combining men who believe in revolution—believe tolerance with idealism. We need to look in it, in a good many cases, with genuine at people as individuals and not as types. conviction. They do not want to reach We need to remember with Thomas Jefagreement. Their demands are, by stipu- ferson that ‘every difference of opinion lation, nonnegotiable. Their adversary is not a difference of principle,” to recog-

may give in, but they will not let him nize that a principle is not necessarily a _agree. Often their terms are stated in a moral absolute, and to remind ourselves way carefully designed to make agree- frequently that an adversary need not be

ment impossible. a mortal enemy.

NOTES 2. Notes Toward a History of American Berman, Justice in the U.S.S.R.: An Interpre-

Justice tation of Soviet Law (New York, 1963), 277-

, 284; Jesse Berman, “The Cuban Popular

LAWRENCE M. FRIEDMAN Tribunals,’’ Columbia Law Review 69

1. Leon de Valinger, Jr., ed., Court (1969), 1317. gs

Records of Kent County, Delaware 1680- 13. William E. Nelson, Americanization 1705 (Washington, 1959), 234-235, 270-271. of the Common Law (Cambridge, Mass.,

2. The trial of Joan Mills and Adam 1974), 37. In every fornication case except Latham did deviate somewhat from the rane (and 95 percent of the sex cases were for norm in that a prison sentence was imposed. fornication), the defendant was the mother Colonial society did not, in general, make of an illegitimate child. Yet Nelson rejects use of prisons in this way. Society needed the argument tha t fornication was p unished workers; a man in jail was not a productive merely because ut burdened towns w! th sup-

an e colonists used jails to detain peo . ,

hand. Th lonist d jails to detain ; port of illegitimate children. He points out

ple who did not pay their debts. Whipping, that prosecutions were brought even against branding, fines, and the stocks were far more mothers who had the rried their partners, and common. See David J. Rothman, The Discov- | mn cases where mere was no economic

ery of the Asylum: Sovial Order and Dis- motive at all.

order in the New Republic (Boston, 1971), 14. Francis W. Laurent, The Business of a

53. Trial Court, 100 Years of Cases: A Census of

3. Charles T. Libby, ed., Province and Actions and Special Proceedings in Circuit Court Records of Maine (Portland, Maine, Court for Chipp ewa County Wisconsin,

1931), Il, 174. 1855-1954 (Madison, 1959), 122. 4. Ibid., 224. 15. Jack K. Williams, Vogues in Villainy: : 5. Laws and Liberties of Massachusetts come ane lina (Colun cn St.o.\.., 19s) , (Cambridge, Mass., 1929), 4. ou around (Columbia, 6. Kai T. Erikson, Wayward Puritans: A 95-58. Study in the Sociology of Deviance (New 16. (James) Willard Hurst, Law and the

| York, 1966), 197. conditions OF States iM in1956), the 6.‘oe 7. James A. Henretta, “Economic Devel- entury United States (Madison, opment and Social Structure in Colonial 17. Ibid. Boston,” in Stanley N. Katz and Stanley I. 18. Ibid.

Kutler, eds., New Perspectives on the Ameri- 19. Rothman, The Discovery of the Asy-

can Past, 2d. ed. (Boston, 1972), I, 53, 62, lum, 71.

table 1. 20. Williams, Vogues in Villainy, 101.

8. Lawrence W. Wylie and Armand 21. See Gustave de Beaumont and Alexis

Bégué, Village in the Vaucluse, rev. ed. de Tocqueville, On the Penitentiary System

(New York, 1969), 84-86. | in the United States and Its Application in 9. See, e.g., John P. Reid, A Law of Blood: France (Philadelphia, 1833).

The Primitive Law of the Cherokee Nation 22. Charles Dickens, American Notes

1962), 91. | oa

(New York, 1970), 242-245; Geert Van den (New York, 1900), 109; see Friedman, A HisSteenhoven, Leadership and Law Among the tory of American Law, 259-260. Eskimos of the Keewatin District (Rijswijk, 23. Dickens. American Notes. 108

10. Joseph H. Smith, ed., Colonial Justice 24. Rothman, The Discovery of the Asy-

in Western Massachusetts, 1639-1702 (Cam- lum, 242. , bridge, Mass., 1961), 204. 25. See Gerhard O. W. Mueller, “Inquiry

11. Ibid., 209. into the State of a Divorceless Society,’’ Uni12. For a discussion of communist law as versity of Pittsburgh Law Review, 18 (1957),

‘parental’ and ‘‘educational,’’ see Harold I. 545. 435

436

Notes to Pages 17-23 | 26. See Nelson M. Blake, The Road to 41. John R. Commons, Races and ImmiReno: A History of Divorce in the United grants in America (New York, 1913), 133.

States (New York, 1962). 42. Ibid. 27. Ibid., 60-61. 43. Ibid., 132. 28. Ibid., 130-151 44, Ibid., 133-134.

29. See Steven Marcus, The Other Victori- 45. George M. Stephenson, A History of ans: A Study of Sexuality and Pornography American Immigration, 1820-1924 (Boston, in Mid-Nineteenth-Century England (New 1916), 170-192. York, 1966); Ronald Pearsall, The Worm in 46. Act of July 2, 1890, ch. 647, 26 Stat. the Bud: The World of Victorian Sexuality 209 (codified at 15 U.S.C. § §107 [1973]).

(New York, 1969). 47. See William Letwin, Law and Eco30. Joseph R. Gusfield, ‘““Moral Passage: nomic Policy in America: The Evolution of

The Symbolic Process in Public Designa- the Sherman Antitrust Act (New York, tions of Deviance,’ Social Problems, 15 1965), 54-71.

(1967), 175. — 48. ActofJune 1, 1908, Laws of Ill. 90.

31. Thomas F. O’Dea, The Mormons (Chi- 49. Lawrence M. Friedman, ‘“‘Freedom of

cago, 1957), 41-75. , Contract and Occupational Licensing 189032. Roger Lane, Policing the City: Boston, 1910: A Legal and Social Study,” California 1822-1885 (Cambridge, Mass., 1967); James Law Review, 53 (1965), 487.

F. Richardson, The New York Police, Colo- 50. Friedman, A History of American nial Times to 1901 (New York, 1970), 23-51. Law, 511-512: see, e.g., Act of May 25, 1897, 33. Civil Judicial Statistics for the Year ch. 188 [1897], Laws of Conn. 883. Of course,

197 2 (London, 1973), 19. A study of litiga- Sunday laws had been enforced off and on tion rates in Spain shows similar results for throughout the century. For some glimpse of recent decades, a period of rapid economic this complex history, see Warren L. Johns, growth in that country. José Juan Toharia, Dateline Sunday, U.S.A.: The Story of Three Cambio social y vida juridica en Esparia and a Half Centuries of Sunday Law Battles

(Madrid, 1974). ce: in America (Mountain View, Calif., 1967). 34, Albert A. Ehrenzeig, “Reimbursement 51. Act of March 2, 1895, ch. 191, 28 Stat. of Counsel Fees and54 the(1966), Great Society,” difiedasded. at 18 fornia Law Review, 792. _ 968Cali(coditied, amen ea,USC @a

a Jerome §1301 (1970)). Lotteries, common in ,the 35. See, e.g., E.theCarlin, Jan How;in ; ; early part of century, were outlawed ard,| ;and Sheldon L. Messinger, Civil Justice ; many states. See John S. Ezell, Fortune’s;

and the Poor: Issues for 1967). Sociological The ine Lottery in America Research (New York, Merryheel: Wheel: “Lottery in ome(Cam-

|e.g., bridge, Mass., 1960). 36. See, Stuart A. Schlegel, Tiruray oe Justice; Traditional Tiruray Law and Moral- 52. Joseph R. Gusfield, The Sy mbolic Cru-

ity (Berkeley, 1970), 163. } | sade: Status Politics and the American Tem37. On this point, see Nelson, above n. 13. perance Movement (Urbana, 1963), 122. See

38. Lawrence M. Friedman, “Legal Rules generally, David J. Pivar, Purity Crusade: and the Process of Social Change,” Stanford Sexual Morality and Social Control, 1868Law Review, 19 (1967), 786, 806; see Marc 1900 (Westport, Conn., 1973).

- Galanter, “‘Why the ‘Haves’ Come Out 53. Act of May 8, 1907, No. 280, [1907] Ahead: Speculations on the Limits of Legal Acts of Ark. 653. Change,” Law and Society Review, 9 (1974), 54. Act of February 27, 1907, No. 55,

95. [1907] Acts of Ark. 682. 39. Lawrence M. Friedman, A History of 55. Act of May 9, 1906, No. 287, [1907]

American Law (New York, 1973), 295-299. Acts of Ark. 682.

40. Debates and Proceedings of the Con- 56. Rufus King, The Drug Hang-Up: stitutional Convention of the State of Cali- America’s Fifty-Year Folly (New York,

fornia, 2 (1881), 700, 704. 1972), 17.

437

Notes to Pages 23-30

57. Troy S. Duster, The Legislation of completely studied, especially in respect to Morality: Law, Drugs and Moral Judgement the extension of common law over con-

(New York, 1970), 3. quered territory...

58. Act of June 25, 1910, ch. 395, 36 Stat. 2. Ido not wish to be understood as tak-

825 (codified, as amended, at 18 U.S.C. 2421 ing the position that everything done at Ply-

[1966]). — mouth was imitated, because each colony

59. Andrew Sinclair, Era of Excess: A seems to have had certain peculiar social Social History of the Prohibition Movement characteristics which found individual

(New York, 1964), 178-219. expression. This was particularly true of

60. Doubleday and Co. v. New York, 335 Massachusetts Bay, where there were a U.S. 848 (1948) (per curiam), aff’g 297 N.Y. greater number of persons of outstanding 687, 77 C.E.2d 6 (1947). The next obscenity intellectual force in positions of authority case did not come before the Court until who had designs utterly different from those almost ten years later: Roth v. United States, of the Plymouth men. At the same time cer-

354 U.S. 476 (1957). tain major achievements of Plymouth, such

61. A Book Named John Cleland’s Mem- as the form of church organization and the oirs of a Woman of Pleasure v. Attorney device of codification, were very certainly

General, 383 U.S. 413 (1966). , borrowed.

62. See Daniel Bell, The End of Ideology: 3. Thus Roscoe Pound, ‘‘The Revival of On the Exhaustion of Political Ideas in the Comparative Law,” Tulane Law Review, 5 Fifties (New York, 1962), 151; Roger Lane, (1930), 3, 7, appears to lean toward this “Urbanization and Criminal Violence in the view. In his Spirit of the Common Law (Bos19th Century: Massachusetts as a Test Case,”’ ton, 1921), 112, in a chapter headed ‘‘Pio-

in Hugh D. Graham and Ted R. Gurr, eds., neers and the Law,’’ Pound says:

Violence in America (New York, 1969), 468, ‘“‘Administration of justice in America was at

469. , first executive and legislative, and these

63. See Charles L. Brace, The Dangerous types of non-judicial justice persisted well Classes of New York and Twenty Years’ into the last century” (113). ““The colonies Work among Them, 3rd ed. (New York, began with all manner of experiments in

1880). administering justice without law and it was 64. Allan Silver, ‘‘The Demand for Order not till the middle of the eighteenth century in Civil Society,” in David L. Bordua, ed., that the setting up of a system of courts and The Police: Six Sociological Essays (New the rise of a custom of studying law in Eng-

York, 1967), 1-24. - land began to make for a general administra-

tion of justice according to English law. Just prior to the Revolution the widespread study

3. King’s Law and Local Custom in of Blackstone, whose first edition appeared Seventeenth-Century New England in 1765, gave great impetus to the reception

JULIUS GOEBEL, JRwas of the law. at Butlarge as late 1791Yrok the , law socommon completely in as New , that the genius of a Kent was needed to make 1. It should here be pointed out that on the common law the law of that state” the side of legal theory the problem of the (115-116). transplantation of law during the colonial If Pound is talking about all the colonies, period presents three aspects, all of which it may be said that the facts do not bear him underwent considerable change from 1600- out. If we take New York, with whose colo-

1776. These are (1) the doctrine of the nial legal records I am familiar, we start out English Courts; (2) the doctrine of the with an elaborate code (1665). Beginning Crown; (3) the doctrine of the Colonists. . . with the opening years of the eighteenth

. In England the theory regarding the king’s century the law rapidly becomes dominions in the Middle Ages remains to be professionalized.

438 Notes to Pages 31-33

4. There can be no doubt from the terms the church. Here is the result of growth, not

of the royal charter to the New England an adaptation. At the outset the church in Council that the legislative power conveyed Plymouth was the state. by the Crown was not delegable. The charter 7. Certain superficial similarities between reads to them and their successors. There is the 1636 preamble and those of the English no mention of assigns. In the light of con- custumals which may be mentioned are the

temporary doctrines of corporations the following: The specification name of the legislative power over the lands granted committee coincides with the naming of conveyed by the charter was obviously con- authorities in some custumals; the prefacing

ceived as a grant of bylaw powers. or mention of the king’s charter in the latter 5. There has never been a thoroughgoing coincides with the recital of the compact and study made of Separatism from the angle of grant in the Plymouth document; finally, the

corporate theory, and this is all the more express mention that the laws are made by remarkable because of the importance of the consent both in the code of 1636 and in some Congregational Church in New England and of the custumals seems significant. This lat-

the close relation of state and church in that ter provision is not unusual in the guild region. To comprehend the steps by which ordinances. the Separatists reached their views we must The preambles of statutes and the long

remember that in England their churches opening recitals of grants are not close were outside the pale of the law; that they enough in content and form for us to regard rejected all ideas of hierarchical organiza- them as possible models. The statutes antetion; that the protestant doctrines of the visi- dating the code of 1636 often have preamble church made some form of organization bles, but these are concise statements of the essential. The central and most characteris- facts motivating the statutes and do not tic fact in Separatism was the covenant by resemble the code preamble. which a church was organized. This was a The form of the preamble is interesting in dual act, a convenant with God—a solemn giving some clue to the theory of legislative promise by the body of believers to God to power. It states that the committee for the do His will—and a second covenant, some- revision of the laws having read the compact times reduced to writing, made by the and the letters patent (sic) of 1629 and “‘findbelievers with one another, to work for the ing that as free borne subjects of the State of Lord, to avoid evil, to do good, and to stand England we hither came endewed with all together. Only in this way could a visible and singular the priviledges belong to such

church be established. in the first place, we thinke good that it be The Separatists seem to have had English established for an act.

municipal institutions in mind, rather than ‘That according to the... due privilege of ecclesiastical corporations like the dean and the subject aforesaid no imposicion law or chapter. It was not until the Leyden Separat- ordinance be made or imposed upon or by ists had resided in Holland that the civil ourselves or others at present or to come but implications of their corporate theory devel- such as shall be made or imposed by conoped, i.e., an identification of the church as a sent, according to the free liberties of the

corporation for civil purpose. state and Kingdome of England and no 6. To anyone familiar with the Separatist otherwise.”

writings and not bemused by theories of It should be noted that the Committee goes democracy, or by hallucinations regarding behind both compact and grant to the intanthe originality of the first settlers, it seems gible privileges of the Englishmen of which difficult to escape the conclusion that the these documents are treated as mere evi-

civil order instituted at Plymouth was no dence. No longer, as in the compact, is

more than the realization of the complete authority conferred by virtue of the fact of possibilities of their corporate theory of the association. The preamble is a crudely church, and in this sense simply the con- phrased appeal to the rights of Englishmen. summation of their speculation regarding This statement anticipates to a degree the

439 Notes to Pages 33-38

debates which occurred shortly thereafter in broadly laid down as misdemeanors tending - England over the distinction between funda- to the hurt and detriment of ‘‘Society Civility

mental laws and other legislation the basis peace and neighborhood.” There is an for which had been laid in the discussions English analogue in the power of the leet to

over the Petition of Right. present public nuisances, but this was rather

If anything in the nature of a constitu- the determination of whether certain facts tional foundation for the future existed in constituted an offense over which its jurisPlymouth, it was this preamble, with the diction was recognized, rather than a speciimportant provision that the freemen must fication of new offenses, particularly as the consent to all laws. There seems, moreover, limits of the nuisance concept were well to be an implicit rejection of royal authority understood.

in the reference to the “‘privileges” of the 12. This conclusion is reached on the

- subject as the source of legislation. It is pos- basis of rather unsatisfactory evidence. The sible to regard this preamble as a retort to the records usually indicate the fact of present-

King’s Commission on Trade and Planta- ment with a marginal notation of the fine, , tions of 1634 and to the projected royal gov- punishment, or discharge of the accused.

ernment for New England. Since no further notation of trial is made, 8. The legislature and chief tribunal of this circumstance, taken in connection with

Plymouth was known as the ‘General the fact that where a jury was actually Court.”’ The earliest records are missing, but impaneled a record is made, seems to indi-

the first ones indicate no clear distinction cate that presentment was tantamount to

between the two functions... conviction.

9. What I have reference to is not only the 13. To anyone under illusions regarding concentration of jurisdiction in a single the morality of the Pilgrim fathers, a perusal

court, but also the failure to distinguish of the criminal records contained in the sharply between a prosecution publicly ini- Court Orders will offer something of a shock.

tiated and a private suit. As far as the records Between the years 1633-1641 offenses , are concerned the Court Orders are very mis- against morals (including sabbath breach,

cellaneous in character. They contain drunkenness, lewdness, fornication) outnotices of presentments, criminal and civil numbered by three to one crimes having an

trials, ordinances, admissions to the cor- element of breach of the peace and were porations, marriages, recordings of person- double the number of offenses against the alty, inquests on special matters, grants, and economic order (extortion, millers’ frauds, many other matters. The Judicial Acts are vagrancy). In the period 1641-1651 crimes devoted chiefly to records of civil actions, involving a breach of the peace increase, the but there are also military orders, trials of ratio to offenses against morality being one

traversed presentments, testimony, etc. to two, the infractions of economic regula-

10. In 1636 the grand jury was provided tions decrease, the ratio being one to three. for by the code, and the trials by jury were to 14. Plymouth Laws, 32 (1633); restated in extend to all cases ‘‘as nearly as possible to the code, ibid., 74... English precidents.”’ The grand jury was to

present to the court persons they found

guilty or probably suspect. After 1640 pres- 4, The Legal Heritage of Plymouth

entments had to be on oath. Colony

11. The grand jury seems to have shared GEORCE L. HASKINS to some extent the power of the magistrate in determining what constituted an offense. In

the case of the latter the statute directed that 1. E.g., Julius Goebel, “King’s Law and in “‘small offences’ the magistrate shall Local Custom in Seventeenth-Century New “determine doe and execute as in widsom England,’’ Columbia Law Review, 31 (1931), God shall direct them.’”’ The power of the 448; George L. Haskins, ‘“‘The Beginnings of

grand jury to determine misdemeanors was the Recording System in Massachusetts,”’

440 Notes to Pages 38-41

Boston University Law Review, 21 (1941), opinion, expressed in my “Codification of

281, 302. the Law in Colonial Massachusetts: A Study 2. Samuel E. Morison, By Land and by in Comparative Law,” 5, that because the tra-

Sea: Essays and Addresses (New York, ditional element in the code is strong it is

1953), 234. difficult to classify the code as ‘“‘modern.”’

3. Ibid., 235. , 16. Kingsbury, The Records of the Vir-

4. Ibid., 234. Although he concedes that ginia Company of London, 164-168, Plymouth instituted civil marriage, a regis- 170-174.

try of deeds, and the first Congregational 17. Brigham, The Compact with the church, Morison goes on to say that even the Charter and Laws of the Colony of New PlyPilgrim church at Plymouth was soon over- mouth, 105-121, 239-301.

shadowed by the Congregational churches 18. George L. Haskins and Samuel E. that sprang up elsewhere in New England - Ewing, 3d, ‘The Spread of Massachusetts and by such learned clergymen as Hooker, _ Law in the Seventeenth Century,’ Univer-

Cotton, and Shepard, whose counterparts sity of Pennsylvania Law Review, 106 could not be found at Plymouth (ibid., 235). (1958), 413. Since the publication of Morison’s essay on 19. Although only a few copies of the colPlymouth, By Land and by Sea, he has expli- lections of laws printed in 1671 and 1685 citly given the colony credit for instituting survive, these and earlier laws were pubthe first bill of rights. Samuel E. Morison, lished twice in the last century, in Brigham, The Story of the ‘Old Colony” of New Ply- The Compact with the Charter and Laws

mouth (New York 1957), 152-153. of the Colony of New Plymouth, and in 5. William Bradford, History of Plymouth Nathaniel B. Shurtleff and David Pulsifer,

, Plantation 2 vols. (Boston, 1912), I, 28. eds., Records of the Colony of New Ply6. Cf. Morison, By Land and by Sea, 235. mouth in New England (Boston, 1861), XI, 7. Henry Adams, History of the United and are generally available in large libraries.

States of America, 9 vols. (New York, 1889), 20. See George L. Haskins, “Law and

I, 133. Colonial Society,’ American Quarterly, 9 8. Mass. Const. Art. 30. (1957), 357-358.

9. William Brigham, ed., The Compact 21. Brigham, The Compact with the with the Charter and Laws of the Colony of Charter and Law of the Colony of New Ply-

New Plymouth Together with the Charter of mouth, 45, 58. ,

the Council at Plymouth, and an Appendix, 22. Ibid., 47 (land to be forfeited when not

Containing the Articles of Confederation of occupied by grantee).

the United Colonies of New England, and 23. ‘And by drunkennesse is understood other Valuable Documents (Boston, 1836), a person that either lisp or faulters in his

35. speech by reason of over much drink, or that 10. Ibid. , staggers in his going or that vomits by rea-

11. Ibid., 36. son of excessive drinking, or cannot follow 12. William H. Whitmore, ed., The Colo- his calling” (ibid., 84).

nial Laws of Massachusetts (Boston, 1889), 24, See George L. Haskins, Law and

29-64. Authority in Early Massachusetts: A Study 13. Susan M. Kingsbury, ed., The Records in Tradition and Design (New York, 1960),

of the Virginia Company of London 78-80.

(Washington, D.C., 1933), 12-29. 25. See Haskins, ‘““The Beginnings of the

14. See generally George L. Haskins, Recording System in-Massachusetts,” 289“Codification of the Law in Colonial Massa- 291, where the land-registration system in chusetts: A Study in Comparative Law,” force in Holland during the period of the Pil-

Indiana Law Journal, 30 (1954), 2-3. grims’ sojourn at Leyden is discussed. 15. Max Farrand, ed., The Laws and 26. Goebel, ‘‘“King’s Law and Local CusLiberties of Massachusetts (Cambridge, tom in Seventeenth-Century New England,” -Mass., 1929). Further study of the 1636 Ply- 435-438, also reprinted in this volume.

mouth code has led me to revise an earlier 27. Ibid., 420.

441

Notes to Pages 41-46

28. Ibid., 435. inherit. The Plymouth provision merely spe29. Ibid., 433-434. cified ‘‘a third part of his lands during her

30. Ibid., 420. life’’ and therefore seems to have included

31. See Haskins and Ewing, “The Spread lands owned by the husband at his death of Massachusetts Law in the Seventeenth rather than during the marriage. In 1646 it

Century,’ 18. | was enacted that a wife must consent to a 32. James K. Hosmer, ed., Winthrop’s gale of land, so that thereafter she received

Journal, ‘“‘History of New England,” 1630- some protection in lands which the husband

1649 (New York 1908), I, 151. owned and conveyed during marriage

33. Whitmore, The Colonial Laws of Mas- (Brigham, The Compact with the Charter sachusetts; see generally, Haskins, Law and and Law of the Colony of New Plymouth, Authority in Early Massachusetts, 124-126. 86). See also George L. Haskins, ‘‘A Problem 34. Brigham, The Compact with the in the Reception of the Common Law in the _ Charter and Laws of the Colony of New Ply- Colonial Period,’ University of Pennsyl-

mouth, 36. vania Law Review, 97 (1949), 842. 35. Ibid. , 47, Sir William S. Holdsworth, A History 36. Ibid., 42. | of English Law (London, 19386), III, 552.

37. Ibid. 48. 22 and 23 Car. 2,c. 10 (1670).

38. Ibid., 241-243, 49. Brigham, The Compact with the

39. Massachusetts Constitution, Arts. 4, 9, Charter and Laws of the Colony of New Ply11,12,15, 23. mouth, 43. 40. Bradford, History of Plymouth Planta- 50. See generally, Haskins, ‘““The Begin-

tion, ],218. nings of the Recording System in 41. Haskins, Law and Authority in Early Massachusetts.”’

Massachusetts, 194-195. 51. Mass. Ann. Laws ch. 183 (1955).

42. Brigham, The Compact with the 52. See generally, Note, “The Role of Law

Charter and Laws of the Colony of New Ply- in Colonial Massachusetts, University of mouth, 43. The reference to equal descent is Pennsylvania Law Review, 108 (1960), 1001, not implicit, but it may be inferred from the dealing with the rule of law in the colony of

reference to “the comendable custome of Massachusetts Bay. Engl. and hold of Est. Greenwich”’ (ibid). At 53. The foregoing is elaborated in George the manor of East Greenwich, the Kentish L. Haskins, ‘Executive Justice and the Rule custom of gavelkind was believed to be in of Law,” Speculum, 30 (1955), 529.

force. Lands held in gavelkind descended to 54. Brigham, The Compact with the all sons. On this question, see George L. Has- Charter and Laws of the Colony of New Ply-

kins, ““Gavelkind and the Charter of Massa- mouth, 19.

chusetts Bay,” Transactions of the Colonial 55. Ibid. 43. Letter from Isaak de Rasieres to 57. Ibid., 241. |

Society of Massachusetts, 34 (1943), 483. 56. Ibid., 36.

Samuel Blommaert, New York Historical 58. John N. Figgis, The Divine Right of Society Collection, 2d ser. II (1849), 352. Kings (Cambridge, Mass., 1914), 175.

44. See generally, George L. Haskins, 59. Cicero, Oratio pro cluentio, c. 53: ‘The Beginnings of Partible Inheritance in ‘‘Legum denique idcirco omnes servi sumus

the American Colonies,’ Yale Law Journal, ut liberi esse possimus.” 51 (1942), 1280.

45. See Brigham, The Compact with the 5. The Politics of Law in Colonial Charter and Law of the Colony of New Ply- America: Controversies over Chancery

mouth, 43. Courts and Equity Law in the Eighteenth

46. Technically, dower at common law Century ,

attached to all lands held in fee simple and fee tail of which the husband was solely and STANLEY N. KATZ

beneficially seised at any time during cover- 1. Berthold Fernow, ed., Calendar of ture and which issue of the marriage might Council Minutes, 1668-1783, Bulletin of the

442

Notes to Pages 46-50

New York State Library, 58 (1902), 157-160, 13. Lewis Morris, Jr., to Board of Trade, 202; The Law Practice of Alexander Hamil- July 19, 1729, ibid., V, 883-885. ton, ed. Julius Goebel, Jr. (New York, 1964), 14. Board of Trade to Montgomerie, May

I, 178-179. 28, 1729, ibid., V, 876-877; Montgomerie to 2. Hunter to Board of Trade, May 7, 1711, Board of Trade, October 20, 1729, ibid., V, in E. B. O’Callaghan and Berthold Fernow, 897; Board of Trade to Van Dam, December eds., Documents Relative to the Colonial 18, 1732, ibid., V, 937.

History of the State of New York (Albany, 15. Cosby to Board of Trade, December 1856-1887), V, 208 (hereafter N.Y. Col. 18, 1732, ibid., V, 937.

Docs.). 16. Smith, History, II, 4. ‘‘Set-off’’ is a 3. Board of Trade to Hunter, June 29, counterclaim by the defendant in an action

1711, ibid., V, 252. 7 for money damages which arises out of a 4. See Hamilton Law Practice, I, 170-173, transaction unconnected with the plaintiff's

180-181. cause of action. The right of set-off was equi-

5. Journal of the Votes and Proceedings of table rather than legal in origin, but the statthe General Assembly of the Colony of New ute 2 George II c. 22 permitted the defendant

York (New York, 1764-1766), I, 308 to set his debt off against that of the plaintiff (hereafter Assemb. Jour.); New York Council in acommon-law court. to Board of Trade, December 13, 1711, N. Y. 17. See, for instance, James Alexander to

Col. Docs., V, 295-296. Alderman Perry, December 4, 1733, Ruther6. Hunter to Board of Trade, January 1, furd Collection, I, 169, NYHS.

1712,N. Y. Col. Docs., V, 298. 18. New York Council to Duke of Newcas7. Hunter to Board of Trade, n.d. [1717], tle, December 17, 1733, N. Y. Col. Docs., V,

ibid, V, 499. On November 6, 1711, the Coun- 980-981. ,

cil sent to the Assembly a bill ‘‘for the better 19. [Lewis Morris, | The Opinion and Recovery of her Majesty’s Quit-Rents,”’ | Agrument of the Chief Justice of the P TOV-

Assemb. Jour., I, 304. } ince of New York, concerning the Jurisdic-

i tion of the Supream Court of the said

8. William Smith, The History of the Province, to determine Causes in a Course of Province of New York, Collections of the Equity, Proceedings of the New Jersey HisNew York Historical Society, (henceforth — torical Society, 55 (1937), 89-116; Mr. Mur-

NYHS, Colls.), 1st ser. IV-V (1826) (New ray’s Opinion Relating to the Courts of York, 1829) I, 237-238; Assemb. Jour., I, 571- Justice in the Colony of New York ... [New 572. In an additional challenge to royal legal York, 1734]; Mr. Smith’s Opinion Humbly

prerogatives, the Assembly passed a bill Offered in the General Assembly ... [New intended to prevent ‘‘Prosecutions by Infor- York, 1734]; Smith, History, Il, 13-15. The

mations” on November 10, 1727 (Assemb. arguments for and against the equitable

Jour., I, 586-570). , jurisdiction of the Supreme Court were 9. Report of the New York Council, extremely formalistic and based almost

December 5, 1727, in New York Gazette, no. entirely on archaic notions of English consti114 (January 1-8, 1727) and no. 115 (January tutional law. For a brief discussion of the lit-

8-15, 1727). | erature, see Katz, Introduction to Alexander, 10. Burnet to Board of Trade, December Brief Narrative, p. 206, n. 8.

21, 1727, N.Y. Col. Docs., V, 847. See also 20. Matthew’s speech of October 21, Obadiah Palmer [et al.]... , Complainants. 1735, in NYHS Colls., (1934), 235; Minute against Jacobus Van Cortland & Adolph Phi- Book, 1720-1748, N. Y. Chancery, Hall of: lipse, Defendants [New York, n.d.], copy in Records, New York City, New York County

NYHS. Clerk’s Office; Orders in Chancery, N. Y., 11. See ‘‘A Word in Season,” New York December 1720-June 1735, Klapper Library,

Weekly Journal, no. 200 (September 5, Queens College, C.U.N.Y.

1737). 21. James Alexander to [Philip Living12. Montgomerie to Board of Trade, ston], draft, September 29, 1735, Rutherfurd

November 30, 1728, N. Y. Col. Docs., V, 874. Collection, II, 131, NYHS.

os 443 Notes to Pages 50-54

22. For the petition, signed by William out committing a crime. Increase Mather, in Smith and James Alexander among others, his famous sermon on drunkenness in 1673,

see New York Weekly Journal, no. 107 made clear that ‘‘a man may be deeply and (November 24, 1735). See also New York damnably guilty of this evil in the sight of Gazette, No. 525 (November 10-17, 1735); God, though it should never proceed to Assemb. Jour., I, 682, 685, 686-687. For those outrageous out-breakings, whereby Lewis Morris’s speech, see New York men cannot but observe it’”’ (Increase Mather, Weekly Journal, no. 122 (March 8, 1735/6). Woe Unto Drunkards [Cambridge, 1673],

The Attorney General’s complaint was filed 40). on February 26, 1734, amended and refiled 7. William H. Whitmore, ed., The Colo-

on March 10, 1739/40: New York Chancery, nial Laws of Massachusetts Reprinted from Decrees before 1800, B-58, Klapper Library, the Edition of 1660 ... (Boston, 1889), 231;

Queens College, C.U.N.Y. idem, The Colonial Laws of Massachusetts, 23. “Reply to Arguments about Courts of Reprinted from the Edition of 1672 ... (Bos-

Equity,” n.d., NYHS, Colls, (1935), 262, ton, 1887), 54-55. ,

260-261. 8. Farrand, Preamble, Laws and Liberties; 24. Assemb. Jour., I, 707-708. Williston Walker, ed., The Creeds and Plat-

forms of Congregationalism (New York, , 1893), 236. See also, on the separate roles of , 6. Law and the Enforcement of church and state, John Cotton, A Discourse

Morals in Early America about Civil Government (Cambridge, Mass.,

DAVID FLAHERTY 1633), passim; also David Hall’s comments on church and state in New England in the

1. Max Farrand, ed., Preamble to The introduction to Perry Miller, Orthodoxy in Laws and Liberties of Massachusetts (Cam- Massachusetts (Harper Torchbooks: New

- bridge, 1929). York, 1970), xix.

2. John Winthrop, The History of New 9. See Roland A. Marchant, The Church

England from 1630 to 1649, ed. James Sav- under the Law: Justice, Administration and

age (Boston, 1826), II, 289. Discipline in the Diocese of York, 1560-1640

3. See the discussion by Julius Goebel, Jr., (Cambridge, Eng., 1969), 223-224, and “King’s Law and Local Custom in Seven- George L. Haskins, ‘‘Precedents in English teenth-Century New England,” in David L. Ecclesiastical Practices for Criminal PunishFlaherty, ed., Essays in the History of Early ments in Early Massachusetts,” Morris D. American Law (Chapel Hill, 1969), 92n; also Forkosch, ed., Essays in Legal History of George L. Haskins, “The Beginnings of Part- Honor of Felix Frankfurter (Indianapolis, ible Inheritance in the American Colonies,”’ 1966), 322.

ibid., 237n. | 10. In fact, given certain popular views 4. Records of the Governor and Company concerning theocratic tendencies in New

of the Massachusetts Bay in New England, _ England, it is amusing to note that one of the ed. Nathaniel B. Shurtleff (Boston, 1853- few instances of a minister serving in public

1854), 87, 93. office occurred in Virginia. In 1694 the Rev-

5 The New Haven Colony did adopt erend James Blair, the commissary of the Cott’s draft until the authorities had an Anglican Church in Virginia, was made a opportunity to shape the general stipula- member of the Council, which constituted | tions from the Mosaic Code into particular the upper house of the General Assembly statutes. See Isabel Calder, ‘John Cotton and and the General Court of the colony. This the New Haven Colony,” New England practice was followed with all succeeding

Quarterly, 3 (1930), 87, 93. commissaries. George M. Brydon, Virginia’s

— a . Mother Church (Richmond, 1947), I, 310.

6. This identification of sin with crime 11. See Perry Miller, “Religion and Sociwas primarily a theoretical conception that ety in the Early Literature of Virginia,” in legislators did not push to absurd lengths. It Miller, Errand into the Wilderness (Camremained possible, for example, to sin with- bridge, Mass., 1956), 129.

444

Notes to Pages 55-58

12. Solomon Stoddard, The Way for a - 22. On this topic, see Herbert K. Fitzroy, People (Boston, 1703), 9. See also Cotton “The Punishment of Crime in Provincial Mather, Bonifacius: An Essay upon the Pennsylvania,’ Pennsylvania Magazine of Good (1710), ed. David Levin (Cambridge, History and Biography, 60 (1936), 247-253.

Mass., 1966), 133; also Joseph Moss, An 23. Lawrence H. Gipson, Crime and PunElection Sermon ... at Hartford (New Lon- ishment in Provincial Pennsylvania (Bethle-

don, 1715), 34. hem, Pa., 1935), 7.

13. Farrand, Preamble, Laws and 24. Fitzroy, ““Punishment of Crime,” 262.

Liberties. See James T. Mitchell and Henry Flanders, 14, Arthur P. Scott, Criminal Law in Colo- eds., The Statutes at Large of Pennsylvania nial Virginia (Chicago, 1930), 291; see also from 1682 to 1801 (Harrisburg, Pa., 1896-

28. 1915), Il, 5-7, 180-182. , 15. See, for example, William W. Hening, 25. Scott, Criminal Law, 25; on this gencomp., The Statutes-at-Large: Being a Col- eral point, see the excellent discussion, lection of All the Laws of Virginia, 1619- ibid., 22-29. 1792, 13 vols. (1819-1823), facsimile reprint 26. Wolford, “Laws and Liberties of

ed. (Charlottesville, 1969), II, 114-115 1648,” 184.

(1662); II, 73-74 (1691), 139-140 (1696), 361 27. Blackstone,Commentaries, IV, 163.

(1705); also Thomas Bacon, ed., Laws of 28. William H. Seiler, ‘““The Anglican Maryland at Large, 1637-1763 (Annapolis, Parish in Virginia,’ in James Morton Smith,

Md., 1765), 1715, chap. 27. ed., Seventeenth-Century America (Chapel

16. Farrand, Laws and Liberties, pp. 5-6. Hill, 1959), 134. Bestiality, sodomy, and rape were also capi- 29. George Webb, The Office and Author-

tal offenses. The Duke’s Laws of 1665 in ity of a Justice of Peace (Williamsburg, New York made adultery a capital offense. 1736), 165. See The Colonial Laws of New York from the 30. Scott, Criminal Law, 279. Year 1664 to the Revolution (Albany, 1894), 31. Farrand, Laws and Liberties, 47.

I,17.21. 32. Farrand, Preamble, Laws and A man and woman were executed for Liberties. adultery in Massachusetts in 1644 in a par- 33. For a few exceptional cases in secular ticularly flagrant case. See Winthrop, His- courts, see Arthur Cleveland, ‘Indictments tory of New England, II, 157-159. In a few for Adultery and Incest before 1650,” Law other cases there is no real evidence that the Quarterly Review, 29 (1913), 57-60. In death penalty was either imposed or carried defense of their property rights, medieval

out. lords of the manor exercised some temporal 18. Emil Oberholzer, Jr., Delinquent jurisdiction over sexual offenses by their

Saints: Disciplinary Action in the Early Con- serfs. Some early-seventeenth-century jus-

gregational Churches of Massachusetts tices of the peace also assumed an unauth-

(New York, 1956), 305. - -orized jurisdiction over incontinence. In 19. Bradford, Of Plymouth Plantation, general, see Goeffrey May, Social Control of 319. Adultery was not a capital offense in Sex Expression (New York, 1931), Chap. 8.

Plymouth. 34. Marchant, The Church under the Law, 20. Farrand, Laws and Liberties, 23. The 219; see also James Fitzjames Stephen, HisDuke’s Laws of 1665 had a similar provision. tory of the Criminal Law of England (LonSee the Colonial Laws of New York,I,35. don, 1883), IT, 404, 411.

21. Thorp L. Wolford, “The Laws and 35. Samuel R. Gardiner, ed., The ConstiLiberties of 1648,” in Flaherty, Essays in tutional Documents of the Puritan RevoluEarly American Law, 183. See the valuable tion, 1625-1660, 3d ed. rev. (Oxford, 1958), article by Keith W. Thomas, ‘‘The Double 142. As late as September 7, 1761, an article Standard,” Journal of the History of Ideas, in the Boston Gazette attacked the idea of 20 (1959), 195-216; and John Demos, A Little ecclesiastical courts in America, associating

Commonwealth: Family Life in Plymouth them with severity, persecution, and the

Colony (New York, 1970), 97. absence of religious liberty (Carl Briden-

445

Notes to Pages 58-63

baugh, Mitre and Sceptre: Transatlantic Control of Sex Expression,’’ Yale Law JourFaiths, Ideas, Personalities, and Politics, nal, 39 (1929), 227n; Sumner C. Powell,

1689-1775 [New York, 1962], 219). Puritan Village: The Formation of a New 36. The Bristol parish court established England Town (Middletown, Conn., 1963),

by the General Court of Virginia in 69: Carl Bridenbaugh, Vexed and Troubled

December 1656 was not an ecclesiastical Englishmen, 1590-1642 (New York, 1968),

court. It was an unsuccessful effort to create 40-41, 361-374. , a county court for a parish in a frontier area 47. See May, Social Control of Sex instead of immediately setting up a new Expression, 194-199. county (Brydon, Virginia’s Mother Church, I, 48. Leon Radzinowicz, A History of

97). English Criminal Law and Its Administra37. Ibid., 282. This episode is treated at tion from 1750 (London, 1948-), II, 3-4.

length on 278-289. 49. Scott, Criminal Law, 254-255, 29138. The Duke’s Laws of New York in 1665 292; Hening, Statutes-at-Large of Virginia, I, vested the whole duty of presenting offenses 44 (1658); IV, 213 (1727).

against morals in churchwardens (see The 50. Whitmore, Laws of Massachusetts, Colonial Laws of New York, I, 26). Maryland 1660, 231; Laws of Massachusetts, 1672, associated ministers and vestrymen with the 04-55. churchwardens (Bacon, Laws of Maryland, 51. The Diary of Samuel Sewall, Collec-

1715, chap. 27). tions of the Massachusetts Historical Soci39. Webb, Justice of Peace, p. 71. For the ety, 5th ser. V-VII (Boston, 1878-1882), II,

basic legislation concerning churchwar- 419-420. dens, see Hening, Statutes-at-Large of Vir- 52. Scott, Criminal Law, 281. ginia, I, 240 (1643), 310 (1646); HI, 139-140 53. This statute in 1576 punished both

(1696), 361 (1705); XII, 28 (1785). the mother and reputed father of a bastard

40. See G. E. Howard, A History of Matri- (Webb, Justice of Peace, 44-45.) monial Institutions (Chicago, 1904), II, 185; 54. Scott, Criminal Law, 280. See in parJames Truslow Adams, Provincial Society, ticular the major act against bastardy in 1690-1763 (New York, 1927), 159; George E. 1769, in Hening, Statutes-at-Large of Vir-

Woodbine, ‘‘The Suffolk County Court, ginia, VIII, 374. ,

1671-1680,” in Flaherty, Essays in Early 55. Whitmore, Laws of Massachusetts, American Law, 192; Edmund S. Morgan, 1672, 55; for the similar situation in Eng“Puritans and Sex,” New England Quarterly, land, see Bridenbaugh, Vexed and Troubled 15 (1942), 595-596; Oberholzer, Delinquent Englishmen, 370. For the lack of impartiality

Saints, 128; Edwin Powers, Crime and Pun- in the remission of fines and infliction of ishment in Early Massachusetts, 1620-1692: - whipping, see Jules Zanger, “Crime and A Documentary History (Boston, 1966), Punishment in Early Massachusetts,” Wil-

404-416. ] liam and Mary Quarterly, 3d ser. 22 (1965), 41. Oberholzer, Delinquent Saints, 111, 476-477.

and chap. 5. 56. Nicholas Trott, ed., The Laws of the 42. Fitzroy, “Punishment of Crime,” 262, Province of South Carolina (Charleston, 259. On the prevalence of prosecutions for 5.C., 1736), 96. fornication and adultery in colonial New Jer- 57. Quoted in Brydon, Virginia’s Mother

sey, see Harry B. and Grace M. Weiss, An Church, I, 404. Introduction to Crime and Punishment in 58. Writing about England in this same Colonial New Jersey (Trenton, 1960), 82-88. period, Keith Thomas has pointed out “the

43. Scott, Criminal Law, 280-281. tradition of promiscuity” among the lower. 44, Semmes, Crime and Punishment in classes and the widespread practice of prosMaryland, 188, and on the prevalence of titution (Thomas, “‘Double Standard,” 206, adultery, fornication, and bastardy, chap. 8. . 198). For evidence of prostitution in the col-

45. Archives of Maryland, ed. W. H. onies, see Carl Bridenbaugh, Cities in the

Browne et al. (Baltimore, 1883—), XIX, 497. Wilderness: The First Century of Urban Life

46. See May, “Experiments in the Legal in America, 1625-1742 (New York, 1938),

446

Notes to Pages 63-69 | 72-73, 226-227, 388-389; also Cities in 1950), 52 (1757); John Davis, Travels of Four Revolt: Urban Life in America, 1743-1776 Years and a Half in the United States of (New York, 1955), 121-122, 316-319. America during 1798, 1799, 1800, 1801 and 59. Marquis de Chastellux, Travels in 1802, ed. A. J. Morrison (New York, 1909), North America in the Years 1780, 1781, and 400, 413-424; The Journal of Nicholas Cress1782, ed. Howard C. Rice, Jr. (Chapel Hill, well, 1774-1777 (New York, 1924), 164-165;

1963), I, 120, 228, 288, 358. Journal and Letters of Philip Vickers Fith-

60. Carl Van Doren, Benjamin Franklin ian, 1773-1774: A Plantation Tutor of the

(New York, 1938), 91, 290. Old Dominion, ed. Hunter D. Farish (New

61. The Secret Diary of William Byrd of York, 1957), 86, 185-188. See also Lorenzo J. Westover, 1709-1712, ed. L. B. Wright and Greene, The Negro in Colonial New England Marion Tinling (Richmond, Va., 1941), 101, = = (New York, 1942), 204-210. The best treat-

169, 337, 425. , ment of interracial sexual activity is in

62. In a letter late in his life to Judge Ben- Winthrop D. Jordan, White Over Black: jamin Lynde of Massachusetts, Byrd American Attitudes toward the Negro, 1550reminded his old friend of their activities 1812 (Chapel Hill, 1968), 136-178. with ladies of pleasure during student days 71. Bacon, Laws of Maryland, 1715, chap. at the Middle Temple in the 1690s ([Byrd,] 44, secs. 26-28; Mitchell and Flanders, StatThe London Diary [1717-172] and Other utes of Pennsylvania, IV, 63. Writings, ed. L. B. Wright and M. Tinling 72. For a similar situation in eighteenth-

[New York, 1958], 9 and passim). century England, see Radzinowicz, English , 63. The widow Thomas’s exploits can be Criminal Law, II, 270-284; see the general followed in the records of the Suffolk discussion in David H. Flaherty, Privacy in County court; Samuel E. Morison, ed., Colonial New England (Charlottesville, Records of the Suffolk County Court, 1671- 1971), chap. 7.

1680 ..., Publications of the Colonial Soci- 73. Henry Hartwell, James Blair, and ety of Massachusetts, XXIX-XXX (Boston, Edward Chilton, The Present State of Vir-

1933). ginia, and the College, ed. Hunter D. Farish

| 64. Diary of Cotton Mather, ed. Worthing- (Williamsburg, 1940), 66-67. For a similar ton C. Ford, Collections of the Massachu- comment on the Congregational ministry in © setts Historical Society, 7th ser. VII-VIU New England, see Cotton Mather, A Faithful (Boston, 1911-1912), II, 160, 235, 229, 283. Monitor (Boston, 1704), 38.

65. Diary of Lt. John Peebles, Dec. 31, 74. See Flaherty, Privacy in Colonial New 1776, microfilm, Library of Congress, quoted England, chap. 7.

in William and Mary Quarterly, 3d ser. 26 75. See the warnings of divine wrath con-

(1969), 441. veyed in Samual Danforth, The Cry of 66. John Williams, Warnings to the Sodom Enquired Into (Cambridge, 1674),

Unclean (Boston, 1699), 22, 19-20, 8. Wil- and Williams, Warnings to the Unclean. liams (1664-1729) was a Harvard graduate and the minister of Deerfield.

408. America

67. See H. B. Parkes, ‘‘New England in the 7. Popular Uprisings and Civil 1730s,” New England Quarterly, 3 (1930), Authority in Eighteenth-Century 68. Webb, Justice of Peace, p. 189.

69. See Stoddard, Way for a People, 21. PAULINE MAIER

70. Suggestive evidence of Virginia appears in: Baroness von Riedesel and the 1. See the following by George Rudé: The American Revolution: Journal and Corre- - Crowd in the French Revolution (Oxford, spondence of a Tour of Duty, 1776-1783, ed. 1959); ‘““‘The London ‘Mob’ of the Eighteenth

Marvin L. Brown, Jr., and Marta Huth Century,’ Historical Journal,2 (1959), 1-18; (Chapel Hill, 1965), 86 (1779); The Journal of Wilkes and Liberty: A Social Study of 1763 John Woolman, ed. Janet Whitney (Chicago, to 1774 (Oxford, 1962); The Crowd in His-

| 447

Notes to Pages 69-71

tory: A Study of Popular Disturbances in the State of New Jersey (Newark 1883), VII, France and England, 1730-1848 (New York 207-226. On other rural insurrections, see 1964), See also E. J. Hobsbawm, Primitive Irving Mark, Agrarian Conflicts in Colonial Rebels: Studies in Archaic Forms of Social New York 1711-1775 (New York 1940), Movement in the 19th and 20th Centuries chaps. 4 and 5; Staughton Lynd, ‘‘The Ten(New York 1959), esp. ““The City Mob,”’ 108- ant Rising at Livingston Manor,’ New York 125. For recent discussions of the colonial Historical Society Quarterly, 48 (1964), 163mob, see Bernard Bailyn, Pamphlets of the 177; Matt Bushnell Jones, Vermont in the

American Revolution (Cambridge, Mass., Making, 1750-1777 (Cambridge, Mass., 1965), I, 581-584; Jesse Lemisch, “Jack Tar in 1939), chaps. 12 and 13; John R. Dunbar, ed., the Street: Merchant Seamen in the Politics The Paxton Papers (The Hague, 1957), esp.

of Revolutionary America,” William and 3-51. Mary Quarterly, 3d ser. 25 (1968), 371-407; _ 4. Richard L. Morton, Colonial Virginia Gordon S. Wood, “A Note on Mobs in the (Chapel Hill, 1960), I, 303-304; Jonathan American Revolution,” William and Mary Smith, “The Depression of 1785 and Daniel Quarterly, 3d ser. 23 (1966), 635-642, and Shays’ Rebellion,” William and Mary Quarmore recently Wood’s Creation of the Ameri- terly, 3d ser. 5 (1948), 86-87, 91.

can Republic, 1776-1787 (Chapel Hill, 5. Bridenbaugh, Cities in Revolt, 114; 1969), passim, but esp. 319-328. Wood offers idem, Cities in the Wilderness, 196, 383, an excellent analysis of the place of mobs 388-389; Edmund S. and Helen M. Morgan, and extralegal assemblies in the develop- The Stamp Act Crisis, rev. ed. (New York, ment of American constitutionalism. Hugh 1963), 159; Anne Rowe Cunningham, ed., D. Graham and Ted R. Gurr, Violence in Letters and Diary of John Rowe, Boston MerAmerica: Historical and Comparative Per- chant, 1759-1762, 1764-1779 (Boston, 1903), spectives (New York, 1969), primarily dis- 218. On the marriage riots, see New-York

cuss uprisings of the nineteenth and Gazette (New York City), July 11, 1765 — twentieth centuries, but see the chapters by and note that when the reporter speaks of Richard M. Brown, “Historical Patterns of persons “‘concern’d in such unlawful Enter-

Violence in America,” 45-84, and ‘The prises” he clearly is referring to the husAmerican Vigilante Tradition,” 154-226; bands, not their “Disciplinarians.’”’ On the reprinted in abridged form in this volume. Rogerenes, see item in Connecticut Gazette 2. Carl Bridenbaugh, Cities in the Wilder- (New Haven), April 5, 1766, reprinted in ness: The First Century of Urban Life in Lawrence H. Gipson, Jared Ingersoll (New America, 1625-1742 (New York 1964), 70- Haven, 1920), 195, n. 1. 71, 223-224, 382-384; idem, Cities in Revolt: 6. John Adams, “Novanglus,” in Charles Urban Life in America, 1743-1776 (New F. Adams, ed., The Works of John Adams York 1964), 113-118; Charles J. Hoadly, ed., (Boston, 1850-1856), IV, 76-77; Salem news The Public Records of the Colony of Connec- of January 25 and February 1, 1774, in Proviticut (Hartford, 1872), VI, 332-333, 341-348. dence Gazette (Rhode Island), February 5,

3. See particularly Richard M. Brown, and February 12, 1774. The South Carolina Regulators (Cambridge, 7. Letter from ‘Friend to the Borough and Mass., 1963). There is no published study of County of Norfolk,” in Purdie and Dixon’s the New Jersey land riots, which lasted over Virginia Gazette Postscript (Williamsburg), a decade and resulted above all from the pro- September 8, 1768, which gives the fullest tracted inability of the royal government to account. This letter answered an earlier letsettle land disputes stemming from conflict- ter from Norfolk, August 6, 1768, available ing proprietary grants made in the late sev- in Rind’s Virginia Gazette Supplement (Wilenteenth century. See, however, ‘“‘A State of liamsburg), August 25, 1768. See also letter Facts concerning the Riots and Insurrections of Cornelius Calvert in Purdie and Dixon’s in New Jersey, and the Remedies Attempted Virginia Gazette (Williamsburg), January 9, to Restore the Peace of the Province,” Wil- 1772. Divisions over the inoculation seemed liam A. Whitehead et al., eds., Archives of to follow more general political lines. See

448 Notes to Pages 71-73

Patrick Henderson, “Smallpox and Patrio- Island Politics, 35-39. There is an excellent tism: The Norfolk Riots, 1768-1769,” Vir- summary of the Polly incident in Morgan, ginia Magazine of History and Biography, 73 Stamp Act Crisis, 59, 64-67; see also Provi-

(1965), 413-424. , dence Gazette, April 27, 1765. On the Fal8. James Madison to Thomas Jefferson, mouth incident, see the letter from the

March 19, 1787, in Julian P. Boyd et al., eds., collector and comptroller of Falmouth,

The Papers of Thomas Jefferson (Princeton, August 19, 1766, Treasury Group I (hereafter

1950-), XI, 223. , T. 1/) Class 453, Piece 182, Public Records

9. Bernard Knollenberg, Origin of the Office (hereafter cited with numbers only). American Revolution: 1759-1766 (New See also the account in Appendix I of Josiah York, 1965), 126, 129. See also, Robert G. Quincy, Jr., Reports of the Cases Argued and Albion, Forests and Sea Power (Cambridge, Adjudged in the Superior Court of JudicaMass., 1926), 262-263, 265. Joseph J. Malone, ture of the Province of Massachusetts Bay Pine Trees and Politics (Seattle, 1964), between 1761 and 1772 (Boston, 1865), 446-

, includes less detail on the forceful resistance 447. W. Noel Sainsbury et al., eds., Calendar

to the acts. of State Papers, Colonial Series, America 10. Admiralty to Governor George and the West Indies (London, 1910,) 1701,

Thomas, September 26, 1743, in Samuel no. 1042, xi, a. A summary of one of the New Hazard et al., eds., Pennsylvania Archives Haven informer attacks is in Willard M. Wal(Philadelphia, 1852-1949), I, 639. For lace, Traitorous Hero: The Life and Fortunes accounts of the Knowles riot, see Governor of Benedict Arnold (New York, 1954), 20-23. William Shirley to Josiah Willard, November Arnold’s statement on the affair which he

19, 1747, Shirley’s Proclamation of led is in Malcolm Decker, Benedict Arnold,

November 21, 1747, and his letter to the Son of the Havens (Terrytown, N. Y., 1932), Board of Trade, December 1, 1747, in 27-29. Gipson, in Jared Ingersoll, 277-278, Charles H. Lincoln, ed., The Correspondence relates the later incidents. For the New Lonof William Shirley ... 1731-1760 (New York don informer attacks, see documents of July 1912,) I, 406-419; see also Thomas Hutchin- 1769 in T. 1/471. On the Saville affair, see son, History of the Province of Massachu- Saville to collector and comptroller of cus_ setts Bay, ed. Lawrence S. Mayo (Cambridge, toms in Newport, May 18, 1769, T. 1/471, Mass., 1936), II, 330-333; and Reports of the and New York Journal (New York City), July Record Commissioners of Boston (Boston, 6, 1769. On later Rhode Island incidents, see 1885), XIV, 127-130. David Lovejoy, Rhode Dudley and John Nicholl to governor of Island Politics and the American Revolu- Rhode Island, August 1, 1770, T. 1/471. Dudtion, 1760-1776 (Providence, 1958), 36-39; ley to commissioners of customs at Boston, and, on the Maidstone in particular, see “‘O. Newport, April 11, 1771, T. 1/482. On the G.” in Newport Mercury (Rhode Island), destruction of the Liberty, see documents in June 10, 1765. Bridenbaugh, Cities in Revolt, T. 1/471, esp. comptroller and collector to 309-311; documents on the St. John episode the governor, July 21, 1769.

in Records of the Colony of Rhode Island 12. On Philadelphia violence, see Wiland Providence Plantations (Providence, liam Sheppard to commissioners of customs, 1856-1865), VI, 427-430. George G. Wolkins, April 21, 1769, T. 1/471; Deputy Collector at

“The Seizure of John Hancock’s Sloop Philadelphia John Swift to commissioners of ‘Liberty,’’’ Proceedings of the Massachu- customs at Boston, October 13, 1769, ibid.; setts Historical Society, 55 (1921-1923), 239- and on a particularly brutal attack on the son 284. See also Lemisch, “Jack Tar,” 391-393; of customsman John Hatton, see Deputy Coland Neil R. Stout, “Manning the Royal Navy lector John Swift to Boston customs commis-

in North America, 1763-1775,’ American sioners, November 15, 1770, and related

Neptune, 23 (1963), 179-181. documents in T. 1/476. See also Alfred S. 11. Heathcote letter from Newport, Sep- Martin, ‘““The King’s Customs: Philadelphia,

tember 7, 1719, Records of the Colony of 1763-1774,” William and Mary Quarterly, Rhode Island, IV, 259-260; Lovejoy, Rhode | 3d ser. 5 (1948), 201-216. Documents on the

449

Notes to Pages 73-75

Maryland episode are in T. 1/513, including quoted in Lemisch, “Jack Tar,’ 25, 391; and

the following: Richard Reeve to Grey Coo- William Smith to Morgan, April 3, 1766, per, April 19, 1775; extracts from a council C.O. 5/1331, 80. Decker, Benedict Arnold, , meeting, March 16, 1775; deposition of Rob- 27-29; deposition of Capt. William Reid on ert Stratford Byrne, Surveyor of his Majesty’s the Liberty affair, July 21, 1769, T. 1/471;

Customs at Sassafras and Bohemia, and Ephraim Bowen’s narrative on the Gaspée Byrne to customs commissioners, March 17, affair, Records of the Colony of Rhode 1775. On the Virginia incident, see William Island, VII, 68-73; Charles Dudley to Boston Smith to Jeremiah Morgan, April 3, 1766, customs commissioners, April 11, 1771, T. Colonial Office Group, Class 5, Piece 1331, 1/482, and deposition by Byrne, T. 1/513.

80, Public Record Office (hereafter cited as Edward Carrington to Jefferson, June 9, ‘C.O. 5/1331, 80); W. W. Abbot, The Royal 1787, Boyd et al., eds., Jefferson Papers, XI, Governors of Georgia, 1754-1775 (Chapel 408; see also Smith, ‘Depression of 1785,”

_ Hill, 1959), 174-175. These customs riots 88 — of the twenty-one men indicted for remained generally separate from the more treason in Worchester during the court’s central intercolonial opposition to Britain April term in 1787, fifteen were “gentlethat emerged in 1765. Isolated individuals men’’ and only six “‘yeomen.”’

such as John Brown of Providence and Max- 16. Gov. Samuel Ward’s report to the

imilian Calvert of Norfolk were involved in Treasury lords, October 23, 1765, Ward both the organized intercolonial Sons of Lib- Manuscripts, Box 1, fol. 58, Rhode Island erty and in leading mobs against customs Historical Society, Providence. See also functionaries or informers. These roles, deposition of Daniel Vaughn of Newport — however, for the most part were uncon- Vaughn was the gunner at Fort George — nected, that is, there was no radical program July 8, 1764, Chalmers Papers, Rhode Island, of customs obstruction per se. Outbreaks fol. 41, New York Public Library, New York

were above all local responses to random City. For British official accounts of the provocations and, at least before the Town- affair, see Lieut. Hill’s version in James shend duties, usually devoid of explicit Munro, ed., Acts of the Privy Council of Eng-

ideological justifications. land, Colonial Series (London, 1912), VI, 13. Hobsbawm, Primitive Rebels, 111. For 374-376, and the report of John Robinson a different effort to see class division as rele- and John Nicholl to the customs commis-

vant in eighteenth-century uprisings, see sioners, August 30, 1765, Privy Council

Lemisch, “Jack Tar,” 25 387. Group, Class I, Piece 51, Bundle I (53a), Pub-

_ 14. “Friends to the borough and county of lic Record Office. Hill, whose report was

Norfolk,’ Purdie and Dixon’s Virginia drawn up soon after the incident, does not Gazette Postscript, September 8, 1768. contradict Ward’s narrative, but seems obliWentworth quoted in Knollenberg, Origin of vious of any warrant-granting process on American Revolution, 124-125. Lemisch, shore; Robinson and Nicoll — whose report ‘Jack Tar,” 383-385. Shirley to Duke of New- was drawn up over a year later and in the castle, December 31, 1747, in Lincoln, ed., midst of the Stamp Act turmoil — claimed Shirley Correspondence, I, 420-423. Dora that a recent customs seizure had precipiMae Clark, ‘‘The Impressment of Seamen in tated the attack upon the St. John. the American Colonies,” Essays in Colonial 17. On the Knowles and Maidstone inciHistory Presented to Charles McLean dents, see above, n. 10. On the Liberty affair, Andrews (New Haven, 1931), 199-200; John see documents in T. 1/471, esp. the deposi-

Swift to Boston customs commissioners, tion of Capt. William Reid, July 21, 1769,

November 15, 1770, T. 1/476. and that of John Carr, the second mate, who

15. Malone, White Pines, 112. ‘‘Friends to indicates the mob soon forgot its scheme of

the borough and County of Norfolk,” Purdie delivering the crew members to the

and Dixon’s Virginia Gazette Postscript, magistrates.

September 8, 1768; Calvert letter, ibid., Jan- 18. Malone, White Pines, 8-9, and passim. uary 9, 1772. Captain Jeremiah Morgan, Records of the Colony of Rhode Island, VIII,

450

Notes to Pages 75-77

60, 62-63, 174-175, including the deposition 1770, Governor William Franklin’s Proclaof Deputy Governor Darius Sessions, June mation, November 17, 1770, and John Hat-

12, 1772, and Admiral Montagu to Governor ton to Boston custom commissioners, Wanton, April 8, 1772. Also, Wanton to November 20, 1770, T. 1/476. The last-menHillsborough, June 16, 1772, and Ephraim tioned riot occurred in November 1762. In Bowen’s narrative, ibid., 63-73, 90-92, Provi- October a cartel ship from Havana had

dence Gazette, January 9, 1773. stopped for repairs. On November 21 a

19. Max Belloff, Public Order and Popu- rumor spread that the Spaniards were murlar Disturbances, 1660-1714 (London, 1938), dering the inhabitants, which drew seamen passim; Albion, Forests and Sea Power, 263; from His Majesty’s Ship Arundel, also in J. H. Plumb, England in the Eighteenth Cen- the harbor, into town, where the seamen tury (Baltimore, 1961; 1st ed., Oxford, 1950), drove the Spaniards into a house, set fire to

66. it, and apparently intended to blow it up. A

20. See, for example, ‘““A Pumpkin” in the dignitary of the Spanish colonial service, New London Gazette (Connecticut), May 14, who had been a passenger on the cartel

18, 1773; ‘“‘O. G.” in Newport Mercury, June ship, was beaten and robbed of some money 10, 1765; New London Gazette, September and valuables. Local men tried to quell the

22, 1769; complaints of Marylander David riot without success. It was eventually put Bevan, reprinted in Rind’s Virginia Gazette, down by militiamen from Norfolk. See “A July 27, 1769, and New London Gazette, July Narrative of a Riot in Virginia in November 21, 1769. Stout, ‘Manning the Royal Navy,”’ 1762,” T. 1/476. 174. For a similar accusation against a sur- 25. Burke and others to the same effect, veyor-general of the king’s woods, see quoted in Jerome J. Nadelhaft, ‘““The Revolu-

Albion, Forests and Sea Power, 262. tionary Era in South Carolina, 1775-1788” 21. Joseph Reed to the president of Con- (Ph.D. diss., University of Wisconsin, 1965), gress, October 21, 1779, in Hazard et al., 151-152. See also account of the ‘Ford Wileds., Pennsylvania Archives, VII, 762. Five son” riot of October 1779 in J. Thomas years earlier Reed had tried to impress upon Scharf and Thompson Westcott, History of

Lord Dartmouth the importance of con- Philadelphia, 1609-1884 (Philadelphia, straining crown agents in the colonies if any 1884), I, 401-403. reconciliation were to be made between Bri- 26. Rudé, Crowd in History, 255-257. tain and the colonies. See his letter to Earl of 27. On the ‘“‘hue and cry,” see Frederick Dartmouth, April 4, 1774, in William B. Pollock and Frederic W. Maitland, The His-

Reed, Life and Correspondence of Joseph tory of English Law before the Time of — Reed (Philadelphia, 1847), I, 56-57. For a Edward I (Cambridge, Eng., 1968; 1st ed., _ similar plea, again from a man close to the 1895), II, 578-580, and William Blackstone, American Revolutionary leadership, see Ste- Commentaries on the Laws of England (Phi-

phen Sayre to Lord Dartmouth, December ladelphia, 1771), IV, 290-291; John Shy, 13, 1766, Dartmouth Papers, D 1778/2/258, Toward Lexington: The Role of the British William Salt Library, Stafford, England. Army in the Coming of the American Revo22. Rudé, Crowd in History, 60, 253-254. lution (Princeton, 1965), 40. The English The restraint exercised by eighteenth-cen- militia underwent a period of decay after tury mobs has often been commented upon. 1670, but it was revived in 1757. See J. R. See, for example, Wood, ‘‘A Note on Mobs,”’ Western, The English Militia in the Eight-

636-637. | eenth Century (London, 1965).

23. Joseph Harrison’s testimony in Wol- 28. Greenleaf’s deposition, T. 1/446; kins, ‘‘Seizure of Hancock’s Sloop Providence Gazette, August 24, 1765; West-

‘Liberty,’ ” 254. ern, English Militia, 74.

24. Jay to Jefferson, December 14, 1786, 29. Governor William Shirley explained Boyd et al., eds., Jefferson Papers,- X, 597; the militia’s failure to appear during the Beloff, Public Order, 30. John Swift to Bos- opening stages of the Knowles riot by citing ton customs commissioners, November 15, _ the militiamen’s opposition to impressment

451

Notes to Pages 77-80

and their consequent sympathy for the 36. Knollenberg, Origin of the Revolu-

rioters. See his letter to the Lords of Trade, tion, 122-130; Albion, Forests and Sea December 1, 1747, in Lincoln, ed., Shirley Power, 255-258. Correspondence, I, 417-418. The English _ 37. New York Journal, August 18, 1768 militia was also unreliable. It worked well (the writer was allegedly drawing together against invasions and unpopular rebellions, arguments that had recently appeared in the but it was less likely to support the govern- British press); and New York Journal Supment when official orders “clashed with the plement January 4, 1770. Note also that Jefdesires of the citizens” or when ordered to ferson accepted Shays’s Rebellion as a sign

protect unpopular minorities. Sir Robert of health in American institutions only after , Walpole believed “that if called on to sup- he had been assured by men like Jay that press smuggling, protect the turnpikes, or the insurgents had acted purposefully and enforce the gin act, the militia would take moderately, and after he had concluded that

the wrong side” (Western, English Militia, the uprising represented no continuous

72-73). threat to established government. ‘‘An 30. Shirley to Josiah Willard, November insurrection in one of the 13. states in the 19, 1747, Lincoln, ed., Shirley Correspond- course of 11. years that they have subsisted ence, I, 407; Bernard’s orders in Providence amounts to one in any particular state in

Gazette, April 27, 1765. 143 years, say a century and a half,” he cal-

31. Shy, Toward Lexington, 39-40, 44, culated. “This would not be near as many 47, 74; Amherst, quoted in J. C. Long, Lord as has happened in every other government

Jeffery Amherst (New York, 1933), 124. that has ever existed,” and clearly posed no 32. Shy, Toward Lexington, 44, Beloff, threat to the constitutional order as a whole Public Order, 157-158; Bridenbaugh, Cities (To David Hartley, July 2, 1787, Boyd et al., | in Revolt, 297; C. F. Adams, ed., Works of eds., Jefferson Papers, XI, 526).

Adams, IV, 74-75; V, 209. 38. John Locke, The Second Treatise of 33. The definition of the common law of Government, paragraphs 223-225; “A State riot most frequently cited — for example, by of Facts concerning the Riots ... in New John Adams in the massacre trials — was Jersey,” New Jersey Archives, VII, 217. New from William Hawkins, A Treatise of the York Journal Supplement, January 4, 1770. Pleas of the Crown (London, 1716), I, 155- Johnson to William Pitkin, April 29, 1768, 159; see also, Blackstone, Commentaries, Collections of the Massachusetts Historical IV, 146-147, and Edward Coke, The Third Society, 5th ser. IX (1885), 275. Adams as Part of the Institutes of the Laws of England ‘“Determinus” in Boston Gazette, August 8,

(London, 1797), 176. 1768; and Harry A. Cushing, ed., The Writ34. Clark, ‘“Impressment of Seamen,”’ ings of Samuel Adams (New York, 1904-

198-224; Stout, ““Manning the Royal Navy,”’ 1908), I, 237; Jay to Jefferson, October 27,

178-179; and Leonard W. Labaree, ed., 1786, Boyd et al., eds., Jefferson Papers, X,

Royal Instructions to British Colonial Gov- A88. : ernors, 1670-1776 (New York, 1935), I, 39. Wroth and Zobel, eds., Adams Legal

442-443. Papers, III, 249-250; New York Journal Sup-

35. L. Kinvin Wroth and Hiller B. Zobel, plement, August 18, 1768; Jefferson to Abieds., Legal Papers of John Adams (Cam- gail Adams, February 22, 1787, Boyd et al.,

bridge, Mass., 1965), III, 253. Account of the eds., Jefferson Papers, XI, 174. C. F. Adams,

Norfolk incident by George Abyvon, Sep- ed., Works of Adams, IV, 77, 80 (quoting tember 5, 1767, in Purdie and Dixon’s Vir- Algernon Sydney).

ginia Gazette, October 1, 1767. Capt. 40. Jefferson to Edward Carrington, JanMorgan quoted in Lemisch, “Jack Tar,” 391; uary 16, 1787, Boyd et al., eds., Jefferson

Munro, ed., Acts of the Privy Council, Colo- Papers, XI, 49, and Reverend James nial Series, VI, 374; Gov. Samuel Ward to Madison to Jefferson, March 28, 1787, ibid., Treasury Lords, October 23, 1765, Ward 252. Wroth and Zobel, eds., Adams Legal

MSS. Box I, fol. 58. Papers, III, 250. Quincy’s address to the jury

452

Notes to Pages 80-81

in the soldiers’ trial after the Boston Massa- Legal Papers, III, 250, and C. F. Adams, ed., cre in Josiah Quincy, Memoir of the Life of Works of Adams VI, 151. Adams’s views

Josiah Quincy, Junior, of Massachusetts were altered in 1815, ibid., X, 181. It is Bay, 1744-1775, ed. Eliza Susan Quincy, 3d noteworthy that the Boston town meeting ed. (Boston, 1875), 46. See also Massachu- condemned the Knowles rioters not simply

setts Assembly’s similar statement in its for their method of opposing impressment address to Gov. Hutchinson, April 24, 1770, but for insulting the governor and the legis-

Hutchinson, History of Massachusetts Bay, lature, and the Massachusetts Assembly ed. Mayo, III, 365-366. This eighteenth-cen- acted against the uprising only after Gover-

tury devotion to political “‘jealousy”’ resem- nor Shirley had left Boston and events bles the doctrine of “vigilance” that was seemed to be “‘tending to the destruction of defended by nineteenth-century vigilante all government and order’ (Hutchinson, groups; see Graham and Gurr, Violence in History of Massachusetts Bay, ed. Mayo, II,

America, 179-183. 332-333. Acts and Resolves of the Province 41. Jefferson to William Stephen Smith, of Massachusetts Bay, III. 647, chap. 18 of

November 13, 1787, Boyd et al., eds., Jeffer- the Province laws, 1752-1753, ‘“‘An Act for son Papers, XII, 356, Jefferson to Carring- Further Preventing all Riotous, Tumultuous ton, January 16, 1787, ibid., XI, 49, Jefferson and Disorderly Assemblies or Companies of

to James Madison, January 30, 1787, ibid., Persons...) This act, which was inspired 92-93; Taylor’s remarks in ‘‘History of Vio- particularly by Pope’s Day violence, was lence,’ The Listener, 129 (1968), 701. renewed after the Boston Massacre in 1770

‘‘Members of the House of Lords... even though the legislature refused to

said... if the people really don’t like some- renew its main Riot Act of 1751, ibid., IV, 87.

thing then they wreck our carriages and tear 44, Arthur M. Schlesinger, ‘Political off our wigs and throw stones through the Mobs and the American Revolution, 1765windows of our town-houses. And this is an 1776,” Proceedings of the American Philoessential thing to have if you are going to sophical Society, 99 (1955), 246; Charles M. have a free country.” Hutchinson to [John Andrews, The Colonial Background of the or Robert] Grant, July 27, 1768, Massachu- American Revolution, rev. ed. (New Haven, setts Archives, XXVI, 317, State House, Bos- 1939), 176; Charles M. Andrews, “The Bos- ,

ton; see also the related story about John ton Merchants and the Non-Importation Selden, the famous seventeenth-century Movement,” Transactions of the Colonial lawyer, told to the House of Commons in Society of Massachusetts, 19 (1916-1917), January 1775 by Lord Camden and recorded 241; Hobsbawm, Primitive Rebels, 111,

by Josiah Quincy, Jr., in the “Journal of 123-124. Josiah Quincy, Jun., during his Voyage and 45. Hutchinson to Thomas Pownall, Residence in England from September 28th, [September or October 1765], Mass. 1774, to March 3d, 1775,” Proceedings of Archives, XXVI, 157. Pauline Maier, “From the Massachusetts Historical Society, 50 Resistance to Revolution: American Radi(1916-1917), 462-263. Selden was asked cals and the Development of Intercolonial what lawbook contained the laws for resist- Opposition to Britain, 1765-1776” (Ph.D. ing tyranny. He replied he did not know, diss., Harvard University, 1968), I, 37-45, “but I’ll tell [you] what is most certain, that 72-215. it has always been the custom of England — 46. C. F. Adams, ed., Works of Adams, and the Custom of England is the Law of IV, 51; Reverend Samuel Langdon’s election

the Land.” sermon to the Third Massachusetts Provin-

42. On the developing distinction Ameri- cial Congress, May 31, 1775, quoted in cans drew between what was legal and con- Richard Frothingham, Life and Times of stitutional, see Wood, Creation of the Joseph Warren (Boston, 1865), 499; Samuel

American Republic, 261-268. Adams to Noah Webster, April 30, 1784, 43. New York Journal Supplement, Jan- Cushing, ed., Writings of Samuel Adams, uary 4, 1770; Wroth and Zobel, eds., Adams IV, 305-306. On Gadsden, see Richard

453

Notes to Pages 81-85

Walsh, Charleston’s Sons of Liberty (Colum- Americans: The Colonial Experience (New bia, 1959), 87. York, 1958), 353.

47. New York Journal Supplement, Jan- 54. Wood, Creation of the American

uary 4, 1770; Jay to Jefferson, October 27, Republic, 410. , ,

1786, Boyd et al., eds., Jefferson Papers, X, 55. Judge Aedanus Burke’s Charge to the 488; Johnson to William Pitkin, July 23, Grand Jury at Charleston, July 9, 1783; and 1768, Collections of The Massachusetts His- South-Carolina Gazette and General Adver-

torical Society, 5th ser. IX, 294-295. tiser (Charleston), June 10, ‘‘A Patriot, ibid., 48. The Statutes at Large [of Great Bri- July 15, 1783; and to “Another Patriot,” tain] (London, 1786), V, 4-6; Hoadly, ed., ibid., July 20, 1783; and on the relevance of Public Records of Connecticut, VI, 346-348 jealousy of power, see a letter to Virginia in for the law, and see also 332-333, 341-348; ibid., Aug. 9, 1783; “Democratic GentleActs and Resolves of Massachusetts Bay, Touch,” Gazette of the State of South CaroIll, 544-546, for the Riot Act of 1751, and lina (Charleston), May 13, 1784.

see also Hutchinson, History of Massachu- 56. Wood, Creation of the American setts Bay, ed. Mayo, III, 6-7; and Acts and Republic, 612-614. Laws of the Commonwealth of Massachu- 57. J. H. Plumb, The Origins of Political setts (Boston, 1893), 87-88, for Act of 1786; Stability, England 1675-1725 (Boston, “A State of Facts Concerning the Riots... 1967), xv, 187; John Adams on the leaders in New Jersey,” New Jersey Archives, VII, of Shays’s Rebellion in a letter to Benjamin

211-212, 221-222; The Statutes at Large of Hitchborn, January 27, 1787, in C. F. Pennsylvania... (n.p., 1899), VI, 325-328; Adams, ed., Works of Adams, IX, 551; mod-

William A. Saunders, ed., The Colonial ern definitions of riot in “Riot Control and Records of North Carolina (Raleigh, 1890), the Use of Federal Troops,’ Harvard Law VIII, 481-486; Laws of the Colony of New Review, 81 (1968), 643. York in the Years 1774 and 1775 (Albany,

1888), 38-43. . 8. Federalism and the Constitution: The

49. See additional instruction to Gover- Original Understanding , nor Josiah Martin, Saunders, ed., Colonial Records of North Carolina, VIII, 515-516; HARRY N. SCHEIBER and Laws of the State of New York (Albany,

1886), 1, 20. 1. No. 85, The Federalist, ed. Jacob E.

50. The Craftsman, VI (London, 1731), Cooke (Cleveland, 1961), 591. All subse263-264. Connecticut and Massachusetts quent references to The Federalist are to laws cited in n. 45; and Laws of the State of Cooke’s edition.

New Jersey (Trenton, 1821), 279-281. 2. Among the many studies of the Consti51. Jefferson to Madison, January 30, tutional Convention, see especially Irving 1787, Boyd, et al., eds., Jefferson Papers, XI, Brant, James Madison: Father of the Consti-

93. , | tution (New York, 1950). Forrest McDon-

52. See Bradley Chapin, “Colonial and ald’s provocative study. The Formation of Revolutionary Origins of the American Law the American Republic, 1776-1790 (Penof Treason,” William and Mary Quarterly, guin ed., Baltimore, 1965; originally pub-

3d Ser. 17 (1960), 3-21. lished as E Pluribus Unum) is useful for its

53. Elbridge Gerry in congressional insights into the national context of crisis in debates, quoted in Irving Brant, The Bill of which the Convention deliberated. But Rights, Its Origin and Meaning (Indianapo- valuable as it is, this work is based in some lis, 1965), 486; Samuel Adams, quoting parts on ingenious but not always convincBlackstone, as “E. A.” in Boston Gazette, ing speculations on circumstantial evidence February 27, 1769, and Cushing, ed., Writ- (e.g., 180ff. and notes). Jackson T. Main, ings of Samuel Adams, I, 317, Timothy The Antifederalists (Chicago, 1965); and E. Dwight, quoted in Daniel J. Boorstin, The James Ferguson, The Power of the Purse: A

454

Notes to Pages 85-89 , History of American Public Finance, 1776- 11. Madison’s notes, June 8, Farrand, I, |

1790 (Chapel Hill, 1961), both contain 164.

abundant data on the political and eco- 12. Madison, his own notes, June 6, Far-

nomic context of the convention issues. A rand, I, 134. See also Hamilton’s exegesis of brilliant interpretation by John P. Roche, the basic purposes of the Constitution in The “The Founding Fathers: A Reform Caucus Federalist, No. 85.

in Action,’ American Political Science 13. Read on June 29, Farrand, I, 463;

Review, 55 (1961), 799-816 goes too far, in Butler on June 6, I, 144, Hamilton on June my view, in contending that the Constitu- 18, I, 287; Madison on June 21, I, 356-359.

tion was ‘makeshift’ and a “patchwork” 14. Morris, on ‘‘compleat and compulsive reflecting the founders’ pragmatic conces- operation,’’ Madison’s notes, May 30, Farsions to realpolitik. See Leonard W. Levy’s rand, I, 34; Madison to N. P. Trist, December commentary In Essays on the Making of the 1831, Farrand, III, 517.

Constitution, ed. L. W. Levy (New York, 15. Wilson in the Pennsylvania conven1969), 175-178. The Levy volume is an tion, November 1787, Farrand, II, 139. Marexcellent collection of essays on the found- tin Diamond, ‘‘What the Framers Meant by

ing. Other useful studies include Clinton Federalism,’ Robert A. Goodwin, ed., A Rossiter, 1787: The Grand Convention (New Nation of States (Chicago, 1961), 24-41, is

York, 1966); and William P. Murphy, The the standard analysis of the pre-1787 under- , Triumph of Nationalism: State Sovereignty, standing of such terms as confederation, the Founding Fathers, and the Making of consolidating government, and federalism.

the Constitution (Chicago, 1967). 16. Madison’s notes, June 29, Farrand, I,

3. McHenry’s notes, May 31, in Max Far- 466. Madison’s earlier intransigence was rand, ed., Records of the Federal Convention expressed in his speech of July 5,1, 527-528.

of 1787, 4 vols. (New Haven, reprinted 17. Johnson, in Madison’s notes, June 29, 1966), I, 61 (hereafter cited as Farrand). Farrand, I, 461; Ellsworth, in Yates’s notes,

4. McDonald, Formation, 166. June 29, I, 474.

5. The many achievements of the nation 18. See McDonald’s analysis, Formation, under the confederation, defined outside Chaps. 6-7. Also, Roche, ‘“The Founding the context of what powers were essential Fathers,’ above, n. 1, in Levy, Essays, to effective pursuit of national purposes, are 200-202.

, the main theme of Merrill Jensen, The New 19. In Pennsylvania’s convention, Nation (New York, 1950). November 1787, Farrand, III, 140.

6. Letters of Members of the Continental 20. Bernard Schwartz underlines the Congress, ed. Edmund C. Burnett, VIII importance of restrictions and of the

| (Washington, 1936), 300-301, 291. supremacy of the Constitution itself as a 7. The Federalist, No. 15, p. 91. guarantee of liberties in The Reins of Power, American Century Series (New York, 1963),

8. On the interplay of economic, sec 40-41. See William M. Wiecek, The Guarantional, and political groups in the conven: tee Clause of the U.S. Constitution (Ithaca, tion, see McDonald, We the People (Chicago, 1972), for an analysis of Article IV and its 1958); McDonald, F ormation, passim; Main, impact on American federalism.

Antifederalists, passim. 21. Vote of August 23, Farrand, II, 391. 9. Madison’s notes, July 7, Farrand, I, See also Robert A. Dahl’s discussion of the

551-552. convention debates, in Pluralistic Democ10. Yates’s notes, June 27, Farrand, I, racy in the United States (Chicago, 1967),

453. On the political thought of the Antife- 26-55; and McDonald, Formation, chap. 6.

deralists generally, see Cecilia Kenyon’s 22. Luther Martin in Yates’s notes, June introduction to The Antifederalists, ed. 27, Farrand, I, 439, Martin’s reply to the Kenyon, The American Heritage Series landholder, Farrand, II, 392. Cf. Robert (Indianapolis, 1966), xxi-cxvi; and Main, Allen Rutland, The Ordeal of the Constitu-

Antifederalists, chaps. 6-8. , tion (Norman, Oklahoma, 1966), 151-153.

455

Notes to Pages 90-93

23. Martin on June 27, Farrand, I, 437; 35. No. 17,107; No. 85, 593. also, Patrick Henry in the Virginia conven- 36. Italics added. No. 17, 105-106. tion, in Kenyon, ed., The Antifederalists, 37. Farrand, I, 135-136; see also I, 284ff., I,

249-250. 316ff.; and Madison in The Federalist, No.

24. ‘‘Philadelphiensis,’’ ibid., 70-87; 46, 318-319. ‘“‘Address and Reasons of Dissent of the 38. Farrand, I, 136. Minority ... in Pennsylvania,” ibid., 28-60; 39. There are numerous excellent analy-

Mason, ibid., 191-195. Of course the Anti- ses of Madison’s theory of factions, on all of federalists were not alone in worrying about which I have drawn here, esp. Benjamin F.

excessive centralization, in doubting the Wright’s excellent introduction to his edilegitimacy of the convention’s action in tion of The Federalist, (Cambridge, Mass., writing a new constitution, or in their other 1961), 1-86, esp. 26ff., 77ff.; Douglass Adair, objections: many of those who became pro- “The Tenth Federalist Revisited,’ William ponents of the 1787 Constitution harbored and Mary Quarterly, 3d ser. 8 (1951), 48-67; identical reservations about both the proce- Adair, “That Politics May Be Reduced to a dures and the results of the convention. See, Science,” Huntington Quarterly, 20 (1957), for example, Robert A. East, ‘““The Massachu- 343-360: and Adrienne Koch, Power, Morals,

setts Conservatives in the Critical Period,”’ and the Founding Fathers (Ithaca, 1961). Richard B. Morris, ed., Era of the American Alpheus T. Mason and John Roche, In Quest

Revolution (1939; Harper ed., New York, of Freedom (Englewood Cliffs, N.J., 1959),

1965), 349-391, 7 9ff., treat Madison systematically as he dif25. “Centinel,’”’ Kenyon, ed., The Antifed- fered from Adams and other contemporary

, eralists, 10-11; Richard H. Lee, ibid., 209ff.; thinkers. Thomas Wait, quoted in Main, Antifedera- 40. Kenyon, The Antifederalists,

lists, 129. XXxix-xli 26. Italics added. No. 39, 256. 41. No. 10, 64. Also, Madison on the role

27. No. 45, 311. of the Senate, in the convention, June 7, Far28. To Thomas Jefferson, October 24, rand, I, 151-152, and June 12, I, 218. 1787, Farrand, III, 134. 42. Koch, Power, Morals, 107-108; see 29. No. 46, 315, 320. also E. A. J. Johnson’s excellent discussion of 30. No. 15, 93. the contemporary view of ‘“‘interests and fac31. No. 16, 102-103. See Alpheus T. tions” in 1787 and the Federalist era, in his Mason, “The Federalist: A Split Personal- “Federalism, Pluralism, and Public Policy,” ity’, “American Historical Review, 57 Journal of Economic History, 22 (1962), 427-

(1951), 625-643. 444, esp. 431; also Richard Hofstadter, The

32. No. 23, 148; in the same essay (151) he Idea of a Party System (Berkeley, 1969), 53. wrote, “Let us not attempt to reconcile con- 43. Quoted in Koch, P Ower, Morals, 107.

tradictions, but firmly embrace a rational 44. Quoted in John C. Miller, Alexander alternative.” Mason, in “A Split Personal- Hamilton and the Growth of a New Nation ity,” cited above n. 31, emphasizes the split (New York, 1959), 212. between Madison and Hamilton, but fails to 45. See Wright’s introduction to The Fednote that Hamilton spoke of ‘‘first princi- eralist, 30-31. See, also, Hamilton on June 18 ples” only by way of reference to a national in the convention, Farrand, I, 284ff. In a government operating directly upon indi- sense Hamilton placed emphasis on the use

viduals instead of upon states. On this, of force as a remedy to internal disruption, Madison was in full agreement. Yet the very Madison on its possibility as a deterrent (cf.

rhetorical differences in the two men’s Madison in No. 46, 320-322). For an entirely essays appear to me important, and I have so different interpretation, however, see Martin

treated them in the text. Diamond, “The Federalists’ Views,’ Essays 33. Italics added. No. 15, 89. in Federalism (Claremont, Calif., 1961), —

34. Ibid., 88; No. 23, 149. 08-64.

456 Notes to Pages 94-99

46. No. 85, 592. , ton (New York, 1964), in which see esp.

47. See text at n. 36, above. See also, inter 163ff., the nationalistic argument for posialia, George Carey, ‘Federalism: Historic tive governmental action that would obviate Questions and Contemporary Meanings — A the effects of misplaced sectionalism and

defense of Political Processes,” in Valerie localism. |

Earle, ed., Federalism: Infinite Variety in 62. Alpheus T. Mason, ‘Our Federal Theory and Practice (Itasca, Ill., 1968), Union Reconsidered,’ Political Science

42-61. Quarterly, 65 (1950), 511-513. Both constitu-

48. No. 45,311. tional authority as derived from Supreme

49. Seen. 24, above. Court decisions and the problems of ‘‘real 50. See Johnson, ‘Federalism, Plura- power’ — sometimes consistent with judi-

lism,” cited in n. 42; and Benjamin Frank- cially mandated doctrine, but often inconsislin’s statement in 1764 that the product of — tent with it — are considered in Harry N. legislation was too often to produce ‘‘Advan- Scheiber, ‘Federalism and the American tages... not being general for the Common- Economic Order, 1789-1910,” Law and Sociwealth; but particular, to private Persons or ety Review, 10 (1975), 57-118. Bodies in the State who procur’d them, and 63. See Arthur Selwyn Miller, The Modat the Expense of the rest of the People,” as ern Corporate State: Private Governments quoted by John Nef in Conyers Read, ed., and the American Constitution (Westport, The Constitution Reconsidered (New York, Conn., 1976); and Grant McConnell, Private

1938), 101. , Power and American Democracy (New 51. See Wright’s introduction to The Fed- York, 1966). Both of these works are highly

eralist, 58, 75-76. | critical of the performance of the federal sys52. Hamilton in The Federalist, No. 78, tem, especially in regard to the containment

527. of private power. For a more benign view, 53. Ibid., No. 44, 305; No. 46, 322. see Morton Grodzins, The American System:

54. No. 46, 315-316; No. 52, 353. A New View of Government in the United

55. No. 39, 250. , , States, ed. Daniel Elazar (Chicago, 1966). 56. Farrand, I, 133-134; see also ibid., I, Other works that provide historical surveys

153. from different perspectives are Daniel Ela57. Madison’s notes, June 18, in the con- gar, The American Partnership (Chicago,

vention, Farrand, I, 285. 1962); and Harry N. Scheiber, The Condition 58. Wright’s introduction to The Federal- of American Federalism: An _ Historian’s

ist, 53-54. View, Senate Committee on Government 59. Madison, “Consolidation” (1791), in Operations 89th Cong., 2d sess., 1966. Madison, Writings, ed. Gaillard Hunt (New York, 1906), VI, 67-69; “Public Opinion” —_g,_ Liberty and the First Amendment:

(1791), ibid., 70. Similarly Madison said in 1790-1800

the Virginia ratification convention: “I go on

this great republican principle, that the peo- LEONARD W. LEvy

ple will have virtue and intelligence to select men of virtue and wisdom ... So that 1. Some reviewers of my book, Legacy of we do not depend ... [on] our rules, but in Suppression: Freedom of Speech and Press the people who are to choose them.”’ And in Early American History (Cambridge, also: “I hope the partiotism of the people Mass., 1960), have criticized my failure to will continue, and be a sufficient guard to define the words, “libertarian” and ‘‘libertheir liberties” (quoted in Brant, Madison: tarianism.”’ The words derive from a Latin Father of the Constitution, 221-223, 201). root meaning “free’’ and, like ‘‘liberty’’ or 60. Miller, Alexander Hamilton, 286. “freedom,” cannot be defined with preci61. Ibid., 289-290. These sentiments sion. I use them to signify those persons and became the main theme, too, in Jacob E. that school of thought advocating the widest Cooke, ed., The Reports of Alexander Hamil- measure of unrestricted freedom for speech

457

Notes to Pages 99-100

and press. The meanings of the terms are rel- fore claimed and exercised within this

ative to time and place. colony, or shall attribute any such author-

2. Most recently expressed by Justice ity, jurisdiction, or power, to the king or

Black in Communist Party of the U.S. v. Sub- parliament of Great Britain’” (William versive Activities Control Board, 81 Sup. Ct. Hurst, “Treason in the United States,” Har1357, at 1443, n.46 (1961). Black quotes the vard Law Review, 58 [1944], 267, quoting statement by Holmes, Brandeis concurring, The Statutes at Large: Being a Collection of mM Abrams V. U.S., 250 U.S. 616, at 630 All the Laws of Virginia [1619-1792], ed.

(1919): “I wholly disagree with the argu- William Waller Hening, 13 vols. [Richment of the Government that the First mond, Va., 1809-23], IX, 170.) For JefferAmendment left the common law as to sedi- son’s role, see Hurst, “Treason in the tious libel in force. History seems to me United States,” 251, and Boyd et. al., eds.,

Ill., 343 U.S. 250, at 272 and 289 (1951). The ; ; *e ainst the notion.” See as Beauharnais v. Jefferson Papers, I, 598.

leading scholarly statement of the accepted ef me stancare authority en ” Black view is Zechariah Chafee, Jr., Free Speech in * Tee the 0 ; © f the was ™ Tove A ho the United States (Cambridge, Mass., 1948), Armen © ban co he common T the | © 21. The most recent restatements are James of criminal libele x fellows, “Where lac. and Sedition Laws and American Civil phemous, immoral, treasonable, schismati-

Morton Smith, Freedom’s Fetters: The Alien

- Liberties (Ithaca, N.Y., 1956), 427-431; C. cal, seditious, or scandalous libels are Herman Pritchett, The American Constitu- punisied by the Engiis® aw ane ony

tion (New York, 1959), 430; and David Fell- OF tne press, property understood, 1s by no

Hon The Limits - Freedom (New means infringed or violated. The liberty of

Brunswick, N.J., 1959), 97 the press is indeed essential to the nature of oo a a free state; but this consists in laying no preViinn n Jerson Peden (Cha Soe vious restraints upon publications, and not

N O 19 . 5) 15 9 P in freedom from censure for criminal matter

4 “HA Bill for new modelling the form of when published. Every freeman has an overnment and for astablishin, the Funda- undoubted right to lay what sentiments he mental principles of our future Constitu- destroy the freedom of the press: but if he june sate’ oy ha wan ‘Bo Set perore i publishes what is improper, mischievous, or

6 oe 6 ; pleases before the public; to forbid this is to

tion,” dat ian Boyd “before 1

h aged an . illegal, he must take the consequences of his

The Papers of Thomas Jefferson, 16 vols. own temerity ... But to punish (as the law (Princeton, NJ - 1950-), 1 39 3. J efferson does at present) any dangerous or offensive copied this provision from a similar one i writings, which, when published, shall on a

eer eee prac toler taht ibid fair and impartial trial be adjudged of a per-

347) yo ° nicious tendency, is necessary for the preser-

e ° e ° li d e th 9

5: “That the mere utterance of apolitical vovermont Sand selision, the only solid becomes oven clesrar in a statute each ne foundations of civil liberty. Thus the will of

that in Virginia, which declared the individuals is still left free; the abuse only of

a er that free will is the object of legal punish-

utterance of the OPmon, OF action pon ut, ment. Neither is any restraint hereby laid to be equally offensive, providing a fine not upon freedom of thought or enquiry; liberty EXCee line fj 0 weap imprisonment din of private sentiment is still left; the disse-

ding £20,000 and impri t not on a

OXCECEONE VG Years Ut any Person resicins minating, or making public, of bad senti-

or ning within ths commonweat a ments, destructive to the ends of society, is sed] ” an 7 willin he maintain and defen d the crime which society corrects” (Sir Wil-

y ee liam Blackstone, Commentaries on the Laws kind or parliament of Great Britain, hereto- 8 sow”

the authority, jurisdiction, or power, of the of England 4 vols. (London, 1759-69], 4

458 Notes to Pages 100-101

chap. 11, 151-152; or, in the 18th ed., which 11. Delaware Constitution of 1792 (Art, I, I used [2 vols., New York, 1836], I, 112-213.) sec. 5), in Constitutions, ed. Thorpe, I, 569,

7. A Complete Collection of State Trials and Kentucky Constitution of 1792 (Art, to 1783, comp. Thomas Bayly Howell, con- XII, sec. 7-8), ibid., III, 1274.

tinued by T. J. Howell to 1820, 34 vols., 12. “Hitherto Unpublished Correspond(London, 1816-1828), XVII, 675; see also Liv- ence between Chief Justice Cushing and ingston Rutherford, John Peter Zenger: His John Adams in 1789,” ed. Frank W. Grinnell,

Press, His Trial and a Bibliography of Massachusetts Law Quarterly, 27 (1942), 12Zenger Imprints. Also a Reprint of the First 16. Adams, of course, signed the Sedition Edition of the Trial (New York, 1904). On Act into law and urged its enforcement; the contemporary significance of the trial Cushing, as a Supreme Court judge, preand its questionable influence in “freeing” _ sided over some of the Sedition Act trials the press, see Leonard W. Levy, “Did the and charged juries on its constitutionality Zenger. Case Really Matter? Freedom of the (see Smith, Freedom’s Fetters, 97-98, 152, Press in Colonial New York,” William and 242, 267, 268, 271, 284, 311, 363, and 371).

Mary Quarterly, 3d ser. 17 (1960), 35-50. 13. See cases cited above, 10. The judges 8. “That the printing-presses shall be free in Oswald’s case were Thomas McKean, to every person who undertakes to examine then a Federalist but subsequently a Repubthe proceedings of the legislature, or any lican, and George Bryan, an Antifederalist branch of government, and no law shall ever and libertarian advocate of a national bill of

be made to restrain the right thereof. The rights. free communication of thoughts and opin- 14. Commonwealth v. Freeman, reported Tons 15 one of the invaluable rights of man, in the Boston Independent Chronicle, Februand every citizen may freely speak, write, ary 24, March 3, 10, 17, and 24, 1791. and print on any subject, being responsible for the abuse of that liberty. In prosecutions 15. “Draught of a Fundamental Constitufor the publication of papers investigating tion for the Commonwealth of Virginia,” in the official conduct of officers or men in a Boyd et al., eds, Jefferson Papers, VI, 304:

public capacity, or where the matter pub- “PRINTING PRESS shall be subject to no | lished is proper for public information, the other restraint than liableness to legal prosetruth thereof may be given in evidence; and cution for false facts printed and published.” in all indictments for libels the jury shall Boyd dates this document between May 15 have a right to determine the law and the and June 17, 1783.

facts, under all direction of the court, as in 16. “A declaration that the federal govother cases” (Pennsylvania Constitution of ernment will never restrain the press from 1790 [Art. IX, sec. 7], in The Federal and printing any thing they please, will not take State Constitutions, Colonial Charters, and away the liability of the printers for false Other Organic Laws, ed. Francis Newton facts printed” (Jefferson to Madison, July 31, Thorpe, 7 vols. [Washington, D.C., 1909], V, 1788, in ibid., XIII, 442).

3100; italics mine). 17. “Madison’s Observations on Jeffer-

9. Pennsylvania and the Federal Consti- son’s Draft of a Constitution for Virginia,”’ tution, 1787-1788 ed. John Bach McMaster October 1788, in ibid., VI, 316.

and Frederick D. Stone (Philadelphia, 1888), 18. Madison’s original proposal was:

308-309. “The people shall not be deprived or

10. Respublica v. Oswald, 1 Dallas (Pa.) abridged of their right to speak, to write, or Reports 319 (1788); “Trial of William Cob- to publish their sentiments; and the freedom bett,’’ November 1797, in State Trials of the of the press, as one of the great bulwarks of United States during the Administrations of liberty, shall be inviolable’ (Debates and Washington and Adams, ed. Francis Whar- Proceedings in the Congress of the United ton (Philadelphia, 1849), 323-324; Respub- States [hereinafter cited as Annals of Conlica v. Dennie, 4 Yeates (Pa.) Reports 267 gress], 1st Cong., 1st sess., [June 8, 1789], I,

(1805). 451).

459 -

Notes to Pages 101-102

19. Jefferson to Madison, August 28, Respublica v. Oswald, 1 Dallas 319 at 320° 1789, Boyd et. al., eds., Jefferson Papers, XV, [1788]).

367. , 29. Wilson’s statement in the Pennsyl20. “The liberty of the Press is secured... vania ratifying convention, quoted in PennIn the time of King William, there passed an sylvania and the Federal Constitution, ed.

act for licensing the press. This was McMaster and Stone, 308; Hamilton in The repealed. Since that time it has been looked Federalist, No. 84. upon as safe” (Debates in the Several State 30. In my book, Legacy of Suppression, I Conventions on the Adoption of the Federal missed the significance of the reference to Constitution... and Other Illustrations of Article III, section 2, and therefore misconthe Constitution, ed. Jonathan Elliot, 2d. rev. strued Wilson’s statement to mean that crimed., 5 vols. in 2 [Philadelphia, 1941], III, inal libels against the United States could be

247). tried only in the state courts. I am indebted 21. Ibid., 560. to John J. Cound for calling attention to my 22. Jefferson to Madison, July 31, 1788, in error in his review of my book in New York

Boyd et al., eds., Jefferson Papers, XIII, University Law Review, 36 (January 1961),

422-423. 256-257. The corrected reading of Wilson’s 23. Madison to Jefferson, October 17, statement strengthens the thesis of the book

1788, in ibid., XIV, 20. regarding the restrictive views of the 24. Debates, ed. Elliot, III, 656. framers. ‘al. “Trial of Joseph Ravara’” (1792), | of Joseph Ravara , in

29. See above, note 18. State Trials, ed. Wharton, 90-92; “Trial of

26. There was a time in England when Gideon Henfield’ (1793), in ibid., 49-92;

neither book, P amphlet, nor paper could be | U.S. v. Worrall, 2 Dallas 384 (1798), in ibid.,

published without a license from govern: 188-199; “Trial of the Northampton Insurment. That restraint was finally removed in gents” (1799), in ibid., 476; “Trial of Isaac the year 1694; and, by such removal, the Williams” (1799), in ibid., 652-654. See also press became perfectly free, for it is not U.S. v. Smith (1797), MSS Final Record of under the restraint of any license. Certainly the United States Circuit Courts of Massathe new government can have nO power to chusetts, 1790-1799, I, 242 (Federal Records im POse restraints” (Hugh Williamson, Center, Dorchester, Mass.). Smith’s case is “Remarks on the New Plan of Government, reported in 27 Federal Cases, No. 16323, in Essays on the Constitution of the United where the date is erroneously given as 1792. States, Published during Its Discussion by Justice Samuel Chase, in Worrall’s case menthe People, ed. Paul Leicester Ford [Brook- tioned above, disagreed with his associate,

lyn, N.Y., 1892], 398). , Judge Richard Peters, who supported the

27. Melancthon Smith, “An Address to jurisdiction of the federal courts in cases of the People of the State of New York” (1788), common-law crime. Chase, however, Pamphlets on the Constitution, ed. Ford changed his opinion in U.S. v. Sylvester

(Brooklyn, 1888), 114. (1799), MSS Final Record, I, 303, an unre-

_ 28. The brief and vague statement by ported case. Eleazar Oswald in 1788 may be regarded by 32. A federal grand jury in Richmond some as an exception to this proposition. presented Congressman Samuel J. Cabell for Oswald, having been indicted for a criminal seditious libel in 1797. Prosecutions for

libel on a private party, published an seditious libel were also begun against Benaddress to the public in which he stated: jamin F. Bache of the Philadelphia Aurora “The doctrine of libel being a doctrine and John Daly Burk of the New York Time incompatible with law and liberty, and at Piece in 1798, shortly before the enactment once destructive of the privileges of a free of the Sedition Act. See Smith, Freedom’s country, in the communication of our Fetters, 95, 183-184, 188-220. thoughts, has not hitherto gained any foot- 33. Supreme Court justices known to

ing in Pennsylvania ...’’ (quoted in have accepted jurisdiction in cases of com-

460 ,

Notes to Pages 102-103

mon-law crimes included James Wilson, Errors, disqualified himself because as Oliver Ellsworth, William Paterson, John > attorney general he had represented the Jay, James Iredell, and Samuel Chase. See state in the Croswell case. Lewis’s opinion

cases mentioned above, note 31. was based on Spencer’s argument. Hamil-

34. U.S. v. Hudson and Goodwin, 7 ton defended Croswell, arguing Zengerian Cranch 32, at 34 (1812). Justice William principles which were accepted by Judge Johnson, speaking for the ‘‘majority,” gave James Kent, a Federalist, joined by Smith an unreasoned opinion. The case had been Thompson, a Republican who had studied decided without arguments of counsel. Wil- law with Kent. In 1805 the state legislature liam W. Crosskey, Politics and the Constitu- enacted a bill allowing truth as a defense if tion, 2 vols. (Chicago, 1953), II, 782, claims published ‘“‘with good motives and for justi-

that Chief Justice Marshall and Justices fiable ends,’ and allowing the jury to

Story and Washington dissented from John- decide the whole issue. The statute is son’s opinion without noting the fact of reported at 3 Johnson’s (N.Y.) Cases 336, at

their dissent on the record. 411-13, following the arguments of counsel 35. On the English legislation of the and the opinions of Kent and Lewis. 1790s, see Sir Thomas Erskine May, Consti- 41. Jefferson to Governor Thomas tutional History of England since the Acces- McKean, February 19, 1803, in The Writings

sion of George Third, 1760-1860, 2 vols. of Thomas Jefferson, ed. Paul Leicester (New York, 1880), II, 161-174. The parli- Ford, 10 vols. (New York, 1892-1899), VIII,

mentary debates and the texts of the Trea- 218-19. a

sonable Practices Act and of the Sedition 42. Jefferson to Abigail Adams, SepAct of 1795, known together as “The Two tember 4, 1804, in ibid., 311. In his eloquent Acts,” were published in London in 1796 first inaugural address, Jefferson declared, under the title History of the Two Acts and in a deservedly much-quoted Passage: “If were imported into the United States and there be any among us who would wish to advertised under the title History of the dissolve this Union or to change its republiTreason and Sedition Bills Lately Passed in can form, let them stand undisturbed as

Great Britain. For the influence of the monuments of the safety with which error English experience and legislation on Fed- of opinion may be tol erated where reason 1s

eralist thought, see Manning J. Dauer, The left free to combat it.” But in his second Adams Federalists (Baltimore, 1953), inaugural address, he spoke of the “licen-

157-159. | tiousness” with which the “artillery of the

36. Annals of Congress, 5th Cong., 2d _ press has been levelled against us,” alleged sess., 2152 (1798); see also ibid., Gallatin at that the “abuses” of the Press lessened its

2163, Nicholas at 2142, and Livingston at “usefulness, and stated, “they might, 2153. indeed, have been reserved correctedand by the whole| some punishments provided

, $7. Debates, ed. Elliot, IV, 540-541. by the laws of the several States against 38. The Writings of James Madison, ed. falsehood and defamation ...’’ He declared Gaillard Hunt, 9 vols. (New York, 1900- that the pressure of public duties prevent

1910), VI, 333-334. | prosecution of the offenders and that his 39. People v. Croswell, 3 Johnson’s (N.Y.) reelection demonstrated that the people Cases 336 (1804). , | could be trusted to choose truth in a con40. Chief Justice Morgan Lewis, joined flict with falsehood. But he added, “No by Judge Brockholst Livingston, whom Jef- inference is here intended, that the laws,

ferson appointed to the United States provided by the State against false and ‘Supreme Court in 1806, explicitly defined defamatory publications, should not be freedom of the press in common-law terms, enforced; he who has time, renders a serrelying on Blackstone and Mansfield for vice to public morals and public tranquility, — precedents. Ambrose Spencer, a Republican in reforming these abuses by the salutary newly appointed to the New York Court of coercions of the law. . .” (ibid., VIII, 346).

461

Notes to Pages 103-104

, 43. “Hampden,” A Letter to the President Committee to whom were referred the Comof the United States, Touching the Prosecu- munications of various States, relative to tions under His Patronage, before the Cir- the Resolutions of the last General Assemcuit Court in the District of Connecticut bly of this State, concerning the Alien and

(New Haven, Conn., 1808), 28. Sedition Laws.”’ The Report is also available

44. Ibid., 8-12. | in Writings of Madison, ed. Hunt, VI, 341-

45. Jefferson to Thomas Seymour, Febru- 406. The edition cited here is The Virginia ary 11, 1807, in Writings to Jefferson, ed. Report of 1799-1800, Touching the Alien

Ford andStephen, Sedition Laws; Together with thetheae 46. Sir IX, James30. Fitzjames A His- ginia Resolutions of December 21, 1798, tory of the Criminal Law of England, 3 vols. Debates and Proceedings thereon, in the (London, 1883), I, 383; Frank Thayer, Legal House of Delegates in Virginia (Richmond, Control of the Press (Brooklyn, N.Y., 1950), 1850), 189-237, a book of great value for its

17, 25,178. inclusion of the Virginia debates on the

47. Annals of Congress, 5th Cong., 2d Sedition Act (pp. 22-161). While those sess., 2103-11 (1798); 2139-43, 2153-54, debates added little to the debates of the

~ 2160-66 (1798). House of Representatives, the remarks of 48. Boston Independent Chronicle, Republican speakers constitute another

March 4-7, April 8-15, April 29-May 2, example of the new libertarianism. 1799, reporting the trial of Abijah Adams, 51. Tunis Wortman, A Treatise Concerneditor of the Chronicle, for seditious libel ing Political Enquiry, and the Liberty of the

against the state legislature of Press (New York 1800). Wortman, one of

Massachusetts. : the leading democratic theoreticians of his

49. George Hay [‘‘Hortensius”], An time, was a New York lawyer prominent in Essay on the Liberty of the Press. Respect- Tammany politics. From 1801 to 1807 he fully Inscribed to the Republican Printers served as clerk of the city and county of

throughout the United States (reprint, Rich- Newortant tracts was the autor ore

mond, Va. 1803). In 1803 Hay also pub- a lished a different tract with a similar title democratic philosophy of social reform, An

An Essay on the Liberty of the Press, Shew- Oration on the Influence of Social Institu-

ing, that the Requisition of Security for tions upon Human Morals and Happiness Good Behavior from Libellers, Is Perfectly (New York 1796,) and another which was a

oini of atheism in the election o . See

Compatible with the Constitution and Laws eae. “efense o! Jeerson ene caarees

oy hes. Vion ane a whe Solemn Address, to Christians and Patriots, Virginia House of Delegates, was appointed upon the Approaching Election of a PresiUnited States attorney for Virginia by Presi- dent of the United States (New York, 1800). dent Jefferson, conducted the prosecution of eae supported the pupication of Wort-

Burr for treason, and concluded his public mans Anquiry by undertaking to secure career as a United States district judge. subscriptions to the book among Republi-

| . can members of Congress (Wortman to Gal-

50. The Report originally appeared asa latin, December 24, 30, 1799, Albert

tract of over eighty pages. The copy in the Gallatin Papers, 1799, nos. 47, 49, New Langdell Treasure Room, Harvard Law York Historical Society). In 1813-1814 Library, is bound together with the 1799 Wortman published a newspaper in New issue of Hay’s Essay. Madison wrote the York, the Standard of Union, to which JefReport at the close of 1799; it was adopted ferson subscribed in the hope that it would by the Virginia legislature on January 11, counteract the “abandoned spirit of false1800, which immediately published it. It is hood” of the newspapers of the country (Jefreproduced in Debates, ed. Elliot, IV, 546- ferson to Wortman, Aug. 15, 1813, Thomas

580, under the title ‘‘Madison’s Report on Jefferson Papers, Henry E. Huntington the Virginia Resolutions... Report of the Library).

462

Notes to Pages 104-110

52. John Thomson, An Enquiry, concern- 72. Thomson, Enquiry, concerning the ing the Liberty, and Licentiousness of the Liberty, and Licentiousness of the Press, 20, Press (New York, 1801). I have not been 22; Hay, Essay on the Liberty of the Press

able to identify John Thomson. (1803 ed. of 1799 tract), 26.

53. Sir William Blackstone, Commen- 73. “Originality” refers to the American taries on the Laws of England, ed. St. scene. American libertarian thought lagged George Tucker, 5 vols. (Philadelphia, 1803), behind its British counterpart, which very I, pt. 2, 2. G, 11-30 of Appendix. Tucker, a likely provided a model for the Republicans professor of law at the College of William in the same ways that British thought advo-

and Mary, was elected to the high court of cating suppression influenced Federalist Virginia in 1803. President Madison opinion. For British precursors of the new appointed him a United States district American libertarianism, see ‘‘Father of

judge in 1813. Candor,”’ A Letter concerning Libels, War-

, 54. [Madison,] Virginia Report of 1799— rants, the Seizure of Papers, and Sureties

1800, 220. for the Peace of Behaviour, 7th ed. (London, 55. Hay, Essay on the Liberty of the Press 1771), 20, 34, 71, 161; Ebenezer Ratcliffe, (1803 ed. of the 1799 tract), 29; Essay on the Two Letters Addressed to the Right Rev.

Liberty of the Press (1803), 32. See above, Prelates (London, 1773), 100; Andrew note 49, for a distinction between the two Kippis, A Vindication of the Protestant Dis-

tracts. senting Ministers (London, 1773), 98-99; 56. Thomson, Enquiry, concerning the Francis Maseres, An Enquiry into the Extent

Liberty, and Licentiousness of the Press, 6-7. of the Power of Juries (1776) (Dublin, 1792),

57. Wortman, Treatise concerning Politi- 6, 13, 18, 22, 24, 28; Jeremy Bentham, A

cal Enquiry, 173. Fragment on Government (London, 1776) 58. [Madison,] Virginia Report of 1799- 154; Capel Lofft, An Essay on the Law of 1800, 226-227. Libels (London, 1785), 60-61; James Adair, 59. Wortman, Treatise concerning Politi- Discussions of the Law of Libels as at Pres-

cal Enquiry, 253. ent Received (London, 1785), 27-28; Manas60. Hay, Essay on the Liberty of the Press seh Dawes, The Deformity of the Doctrine of

(1803 ed. of 1799 tract), 28. Libels, and Informations Ex-Officio (Lon61. Annals of Congress, 5th Cong., 2d don, 1785), 11-24, 28; the celebrated argu-

sess., 2162, [July 10, 1798]. ment of Thomas Erskine in defense of Tom

62. Thomson, Enquiry, concerning the Paine, in a trial for seditious libel, 1792, Liberty, and Licentiousness of the Press, 6-8. published as a contemporary tract and 63. [Madison,] Virginia Report of 1799- available in Speeches of Thomas Lord Ers-

1800, 226. kine, Reprinted from the Five Volume 64. Wortman, Treatise concerning Politi- Octavo Edition of 1810, ed. Edward Wal-

cal Enquiry, 262. ford 2 vols. (London, 1870), I, 309-313; Rob65. Hay, Essay on the Liberty of the Press ert Hall, “An Apology for the Freedom of

(1803 ed. of 1799 tract), 23-24. _ the Press and for General Liberty” (1793) in

66. Ibid., 25. Miscellaneous Works and Remains of the 67. Hay, Essay on the Liberty of the Press Reverend Robert Hall, ed. John Foster (Lon-

(1803 tract), 29. don, 1846), 172-179.

| 68. Wortman, Treatise concerning Politi-

cal Enquiry, 140, 253; Thomson, Enquiry, 10. The Release of Energy concerning the Liberty, and Licentiousness

of the Press, 79. JAMES WILLARD HURST

69. Ibid., 22. 1. Lothrop’s account of the Pike Creek 70. [Madison,] Virginia Report of 1799- history, including a copy of the Pike River 1800, 222. Claimants Union, is contained in the Journal 71. Wortman, Treatise concerning Politi- of the Assembly, 8th Wisconsin Legislature,

cal Enquiry, 29. Appendix, II (Madison, 1856), 472—275.

463

Notes to Pages 111-124

2. See generally, Edward S. Corwin, Lib- might hamper and even stifle the growth of

erty Against Government (Baton Rouge, other great and paramount interests to the 1948), and Selected Essays on Constitu- detriment of the public welfare.’’); Journal of

tional Law (Chicago, 1938), II, Chap. 1. the Senate, 46th Wisconsin Legislature , Aspects of basic changes in property law are (Madison, 1903), 1038-1039, re Bill 25S.

discussed in Paschal Larkin, Property in the 13. Cf. Zechariah Chafee, Free Speech in Eighteenth Century (Dublin, 1930), 141, 148; the United States (Cambridge Mass. 1942),

John Scurlock, Retroactive Legislation 437; John C. Miller, Crisis in Freedom (BosAffecting Interests in Land (Ann Arbor, ton, 1951), 193, 221, 226-227, 230; C. Vann 1953), 210, 213; Lewis M. Simes, “Historical Woodward, Reunion and Reaction (Boston, Background of the Law of Property,” in 1951), 13, 15, 208, 211-212, 214-215. American Law of Property (Boston, 1953), I, 14. See Joseph Spengler, ‘‘Laissez Faire

58—60, 63-65. and Intervention; a Potential Source of His-

3. Cf. Joseph Dorfman, The Economic torical Error,” Journal of Political Economy, Mind in American Civilization (New York, 57 (1949), 438, 440. 1946), II, 630-634, 795, 958-960; Louis M.

Hacker, The Triumph of American Capital- ; ism (New York, 1940), 317-321, 339-345; 11. An Overview of American Land Policy David M. Wright, ‘‘The Modern Corporation PAUL W. CATES

— Twenty Years After,’ University of Chi- :

cago Law Review, 19 (1952), 662, 665, 667. 1. Merrill Jensen, The New Nation: A His4. Fisher v. Horicon Iron & Manufacturing tory of the United States during the ConfedCo., 10 Wis. 351, 354 (1860); cf. Newcomb v. eration, 1781-1789 (New York 1965),

Smith, 2 Pinney 131, 140 (Wis. 1849). 350-359; Henry Steele Commager, Docu5. Brandeis, J., in Louisville Joint Stock ments of American History (New York, Land Bank v. Radford, 295 U.S. 555, 588 1962), 144, Art. IV, sec. 3 of the Constituiton.

(1935), cf. Local Loan Co. v. Hunt, 292 U.S. 2. Thomas C. Donaldson, The Public

234, 244(1934). Domain: Its History, with Statistics 6. Waite, C. J., in Canada Southern Rail- (Washington, 1883), 68-69.

way Go. v. Gebhard, 190 U.S. 527, 536 3. Donaldson, Public Domain, 155-156.

(1883). 4. Paul W. Gates, History of Public Land

(1859). 55-56.

7. Von Baumbach v. Bade, 9 Wis. 559, 583 Law Development (Washington, 1968),

8. West River Bridge Co. v. Dix, 6 How. 5. Commager, Documents, 123-124.

507 (U.S. 1847). 6. Significant works on colonial land 9. Providence Bank v. Billings, 4 Pet. 514 policies are listed in Frank Friedel, Harvard (U.S. 1830); Stone v. Mississippi, 101 U.S. Guide to American History, 2 vols. (Cam-

815 (1880). bridge, Mass., 1974), Il, 717.

10. Legal Tender Cases, 12 Wall. 457 7. The population of Great Britain in 1791

(U.S. 1871); cf. Norman v. Baltimore & Ohio was 9,747,000; that of the United States in

Railroad Co., 294 U.S. 240 (1935). 1790 was 3,929,214 (Phyllis Deane and W. 11. Proprietors of the Charles River A. Cole, British Economic Growth [New Bridge v. Proprietors of the Warren Bridge, York and London, 1962], VI, 8; World 11 Pet. 420, 547-548, 552-553 (U.S. 1837). Almanac, 1975 [New York, 1975], 145). 12. Veto Message of Gov. Jeremiah Rusk, 8. Act of 4 August 1790, 1 Stat., 144.

re Bill 100S, Journal of the Senate, 35th Wis- 9. For administrative restraint in not consin Legislature (Madison, 1882), 489. pressing lands into the market by President Compare the Veto Messages of Governor Pierce in the fifties and for the eighty-acre LaFollette, Journal of the Assembly, 45th limitation upon the alienation of southern Wisconsin Legislature (Madison, 1901), 723, — lands between 1866 and 1876, see Paul W. re Bill 371A (‘‘The unqualified existence and Gates, Fifty Million Acres: Conflicts over continuance of the grant for the entire period Kansas Land Policy, 1854-1890 (Ithaca,

464 ,

Notes to Pages 124-130 , N.Y., 1954), 76-77; and Gates, ‘Federal Land 18. U.S. Indian Claims Commission, Policy in the South, 1866-1868,” Journal of Annual Report, 1974, Appendix 1.

Southern History, 6 (1940), 304-330. 19. Ray P. Teele, The Economics of Land 10. Paul W. Gates, ‘‘Homestead Law in an Reclamation in the United States (Chicago, Incongruous Land System”? American His- 1927), 261. torical Review, 41 (1936), 652-681; idem, 20. Congressional Record, 57th Cong. 1st “The Homestead Act: Free Land Policy in sess., January 21, 1902, 830, June 13, 1902, _ Operation,’”’ Howard W. Ottoson, ed., Land 6733; compiled from Agricultural Census of

Use Policy and Problems in the United 1964.

- States (Lincoln, 1963), 28-46; idem, ‘The 21. Returns from the sale, leasing, rentals, Homestead Law in Iowa,’ Agricultural His- and licensing of the public lands that flowed

tory, 38 (1964), 67-78. , into the reclamation fund were small in the

11. I have discussed the terms laid down early years, but with large increases in

in the admission acts and the grants to the recent years they have averaged $19,124,000 states in History of Public Land Law Devel- over the entire period from 1901 to 1972 for

opment, 285-318. a total of $1,372,952,847 (U.S. Department of 12. Western feelings on the retention of the Interior, Bureau of Reclamation, Federal

the public lands by the United States in the Reclamation Projects: Water and Land later years are best seen in E. Louise Peffer, Resource Accomplishments [Washington, The Closing of the Public Domain: Disposal 1972], Appendix 2, p. 25). and Reservation Policies, 1900-1950 (Stan-— 22. A random sampling of the Senate and

ford, 1951). : House committees on public lands in 1910 13. The classic treatment of the land- and 1930 shows the following:

grant railroad as a promoter of settlement if 1910

_ James B. Hedges, ‘“The Colonization Work of House Senate the Northern Pacific Railroad,” Mississippi From public-land states 17 15

Valley Historical Review, 13 (1926), 312- From 19 non-public-land states 3 0 342. Also excellent is Richard C. Overton,

Burlington West: A Colonization History of 1930

1941). rom public-land states 18 12 From 19non-public-land states 4 2

the Burlington Railroad (Cambridge, Mass., 7 blic-] House Senate

14. The latest attempt of the AAR is a flyer entitled Railroad Land Grants: A Sharp The Public Land Law Review Commission

| oe | the public-land states.

Deal for Uncle Sam. oe | was packer Ma te 5, with appointees from | 15. The coal reserves in the alternate SeC- 9 , I have given in more detail the reve-

tions of the old Northern Pacific (nowpolicy Bur- ;in . aHisaye ;lington nue-sharing features of federal Northern) in North Dakota and ; f Public Land Law Development Montana and. .the oil-bearing lands603. of the 78.30. | | P pss : -30, 582, 595, Southern Pacific in California have value 24. U. S. Public Land Law Commission,

almost beyond Imagination. One Third of the Nation’s Land: A Report to 16. The story of the various efforts of the the President and the Congess (Washington,

original thirteen states and other non- 1970), 237.

public-land states to share in the proceeds 25. 67 Stat., 29. from the sale or leasing of United States land 26. An editorial in the New York Times, is given in greater detail in History of Public February 27, 1975, entitled “Whose Public

Land Law Development, 11-28 , Lands?” scores the Secretary of the Interior 17. Paul W. Gates, “Indian Allotments for ordering the transfer of three wildlife refPreceding the Dawes Act,” John G. Clark, -uges from the Fish and Wildlife Service to ed., The Frontier Challenge: Responses to the Bureau of land Management where they the Trans-Mississippi West (Lawrence, will presumably be subordinated to the wel-

Kansas, 1971), 141-170. a fare of livestock and mining interests.

465

Notes to Pages 131-133

27. In the extensive literature on this sub- Massachusetts studies provide a more accuject Joseph James Shomon, Open Land for rate perspective on the police power before Urban America: Acquisition, Safekeeping, 1861: Oscar and Mary F. Handlin, Commonand Use (Baltimore, 1971), well sumarizes wealth: ... Massachusetts, 1774-1861, rev.

the issues. | , ed. (Cambridge, Mass., 1969), passim; and Leonard W. Levy, The Law of the Common-

12. Property Law, Expropriation, and wealth and Chief Justice Shaw (Cambridge, Resource Allocation by Government; 1957), 229-281, The DUTNETOUS valuable

1789-1910 studies of Willardthemes Hurst on this and related are considered in Scheiber, ‘‘At the

Harry N. SCHEIBER Borderland of Law and Economic History:

The Contributions of Willard Hurst,’’ Ameri-

1. Harry N. Scheiber, ‘‘Government and can Historical Review, 75 (1970), 744-756.

the Economy: Studies of the ‘Common- 6. Simon Kuznets, Economic Growth and wealth’ Policy in 19th Century America,” Structure: Selected Essays (New York,

Journal of Interdisciplinary History, 3 1965), 108.

(1972), 135-151; (James) Willard Hurst, Law 7. See text below, at notes 29-32. and the Conditions of Freedom in the Nine- 8. Note, “Public Use Limitations on Emiteenth-Century United States (Madison, nent Domain,” Yale Law Journal, 56 (1949), 1964); James H. Soltow, ‘American Institu- 605-606. tional Studies: Present Knowledge and Past 9. No single monograph, even in the literTrends,” The Journal of Economic History, ature of legal history, provides a dependable

21 (1971), 87-105; Allan G. Bogue, “To discussion of eminent-domain law, accurate | Shape a Western State: Some Dimensions of and in a conceptual framework useful for the Kansas Search for Capital, 1865-1893,” analysis in economic history. Uniquely useJohn G. Clark, ed., The Frontier Challenge: ful is Willard Hurst’s case study of public

Responses to the Trans-Mississippi West economic policy, Law and Economic

(Lawrence, 1971), 203-234. Growth: The Legal History of the Lumber

2. Edward S. Corwin, American Constitu- Industry in Wisconsin, 1836-1915 (Camtional History: Essays, ed. A. T. Mason and bridge, Mass., 1964), 181ff, and passim; see

G. Garvey (New York, 1964), 50. also J.M. Cormack, ‘‘Legal Concepts in Cases 3. Francis S. Philbrick, “Changing Con- of Eminent Domain,” Yale Law Journal, 41, ceptions of Property in Law,” University of (1931), 221-261; and Levy, Law of the ComPennsylvania Law Review, 86 (1938), 723; | monwealth, 118-135. Edward S. Corwin, ‘“‘The Basic Doctrine of 10. Levy, Law of the Commonwealth, 255American Constitutional Law,” Michigan 258; Joseph K. Angell, A Treatise on the Law

Law Review, 12 (1914), 247-276. of Watercourses, 5th ed. (Boston, 1854), 547-

4, Lance E. Davis and Douglass C. North, 565; Anon., ‘“The Law of Water Privilege,”

Institutional Change and American Eco- American Jurist and Law Magazine, 2

nomic Growth (Cambridge, 1971), 75. The (1829), 25-38. conventional interpretation of the Granger 11. Development of the limiting concepts Cases and the doctrine of property ‘‘affected in early jurisprudence is treated in J.A.C. with a public interest’? are considered at Grant, “The ‘Higher Law’ Background of

, length and critically examined in Harry N. Eminent Domain,’ Wisconsin Law Review,

Scheiber, “The Road to Munn: Eminent 6, (1931), 67-85. See also Philip Nichols, Jr., Domain and the Concept of Public Purpose ‘The Meaning of Public Use in the Law of in the State Courts,’ Perspectives in Ameri- Eminent Domain,” Boston University Law can History, 5 (1971), 329-402. Extensive Review, 20 (1940), 615-641. On the philosodocumentation is there available for some of phical foundations of eminent domain, see

the themes treated in this essay. Joseph L. Sax, “Takings and the Police 5. John R. Commons, Legal Foundations Power,” Yale Law Journal 74 (1964), 36-76;

of Capitalism (Madison, 1959), 328. Two and Sax, “Takings, Private Property and

466

Notes to Pages 134-137

Public Rights,’ Yale Law Journal, 81 (1971), setting of benefits was singled out as the

149-186. source of great “loss and wrong”’ in a pole12. Rogers v. Bradshaw, 20 John R. 735 mical pamphlet, Eminent Domain and Rail

(N.Y. 1823) at 740. Road Corporations: Some Thoughts on the 13. Hurst, Law and Economic Growth, Subject — By a Farmer (Philadelphia, 1873), 181-182; Scheiber, ““Road to Munn,” 361. I 9 (copy in Eleutherian Mills Historical

am also indebted to Professor Morton Hor- Library). Cf. J. B. Thayer, ‘“‘The Right of Emiwitz for useful suggestions and comments. nent Domain,” Monthly Law Reporter, n.s. 9

14. Parker, J. (per curiam), Callender v. (1865), 307-312.

Marsh, 1 Pick. 417 (Mass. 1823) at 430. 21. Newcomb v. Smith, 2 Pinn. 131 15. Monongahela Navig. Co. v. Coons, 6 (Wisc. 1849) at 138; Angell, Watercourses,

Watts & S. 101 (Penn. 1843) at 115. chap. 12.

16. Smith v. Corp. of Washington, 20 How. 22. Railroad Co. v. Wilson, 17 Illinois 123

135 (U.S. 1857) at 147-149. at 127 (1856); Brainerd v. Clapp, 10 Cush. 6 17. The bias of juries in favor of small- (Mass. 1852) at 10-11; cf. Childs v. N. J.

property owners suffering damages from Centr. Railroad Co., 33 N. J. L. 323. takings can safely be assumed, I think. Cor- 23. Beekman v. Railroad Co., 3 Paige 45 roborative evidence is in Wex S. Malone, (N.Y. Ch., 1831) at 73; Boston etc. Mill Dam “The Formative Era of Contributory Negli- Co. v. Newman, 12 Pick, 467 (Mass., 1832) at

gence,” Illinois Law Review, 41 (1946), 480.

155-160. 24. On similar grounds, many states had

18. Apart from the staggering problem of permitted expropriation for building evaluating the available data for damages wharves and basins, establishing ferries, awarded versus market value of property draining marshes and swamps, and conveytaken, there is the troublesome question of ing water to towns (see Scheiber, ‘“‘Road to transaction costs: even if property owners Munn,” 367-368; and Thayer, “Right of Emiarrived at negotiated settlement of damages, nent Domain,” passim). when did they do so because the offer made 25. Boston etc. v. Newman, 12 Pick. 467 them was fair and when because the costs of (Mass., 1832); Murdock v. Stickney, 8 Cush. litigation (the only alternative) and of time 113 (Mass. 1851); Glover v. Powell, 2 Stock.

spent on it would be so dear? 211 (N. J. Ch., 1854).

19. For a brief period after 1840, New 26. Scudder v. Trenton Del. Falls Co., 1

Hampshire suspended devolution policy. N.J. Eq. 694 (1832). ‘The landholders adjaSee Edward Chase Kirkland, Men, Cities and cent to the Company’s works held the key to

Transportation: A Study in New England its prosperity, and a perfect control over it’’ History, 1820-1900, 2 vols, (Cambridge, (Trenton Delaware Falls Co., Second Annual

Mass., 1948), I, 163-164. Report [1833], 12).

20. Scheiber, Ohio Canal Era: A Case 27. Boston etc. v. Newman, 12 Pick. 467 Study of Government and the Economy, (Mass., 1832) at 481. 1820-1861 (Athens, Ohio, 1969), 277-278. 28. Cooley, C. J. (per curiam), Ryerson v. Frequent damage awards of one dollar, after Brown, 35 Mich. 334 (1877) at 337. offsetting had been figured, occurred in Illi- 29. West River Bridge v. Dix, 6 How. 507 nois, as considered in a seminar paper (MGS., (U.S. 1848), on which see Scheiber, ‘‘Road to

1972) by Mark Van Ausdal, University of Munn,” 376-380. Chicago Law School. Much later, awards of 30. Ibid.; the taking of a franchise was six cents, after offsetting, became a cause considered again in Richmond etc. Railroad céleébre in New York. See New York, Consti- v. Louisa Railroad, 13 How. 71 (U.S. 1852).

tutional Convention of 1894, Revised Record 31. See sources cited above, note 20. (Albany, 1900), 633-635, 651-653. ‘“‘Oppres- 32. Mills v. St. Clair County, 8 How. 569 sion” of landowners through damage judg- (1850) at 584.

ments is discussed in American Jurist, 2 33. Ohio State Constitutional Convention (1829), 33; and, later in the railroad era, off- of 1850, Reports and Debates, 2 vols.

467

Notes to Pages 137-140

(Columbus, 1851), 883-893; Cormack, “Legal 41. John D. Hicks. The Constitutions of

Concepts,” 244-246 (on the Illinois conven- the Northwest States, University of tion of 1870 debate on consequential dam- Nebraska Studies, XXIII (Lincoln, 1923), ages); Charles T. McCormick, ““The Measure 146, and passim. Gordon M. Bakken, “The of Compensation in Eminent Domain,’ Min- Impact of the Colorado State Constitution on

nesota Law Review, 17 (1933), 492-493 (on Rocky Mountain Constitution Making,” Iowa, etc.); Proceedings of the New York Colorado Magazine of History, 47 (1970), Constitutional Convention of 1867-68 152-175 treats eminent-domain debates.

(Albany, 1868), 3247-56. 42. Proceedings and Debates of the Con-

34. See, for example, Perry v. Wilson, 7 stitutional Convention of Idaho, 1889 (CaldMass. 393 (1811) on log-boom franchises; well, 1912) 304. Anon., “Rights of the Public in Fresh Water 43. Idaho Const. of 1889, Art. I, sec. 14. Rivers,’ American Law Magazine, 5 (1845), 44. Dayton Gold & Silv. Min. Co. v. 267-281, on Connecticut and Pennsylvania Seawell, 11 Nev. 394 (1876) at 400-401, 411. doctrines; Commonwealth v. Chapin, 5 Pick. 45. See, e.g., Highland Boy Gold Mining 199 (Mass. 1827), on rights in fisheries; and Co. v. Strickley, 78 Pac. 298 (Utah, 1904).

Holyoke Co. v. Lyman, 15 wall. 500 (82 U.S. 46. Butte, A. & P. Railroad Co. v. M.U. 133) (1873), retrospectively, on the same; Railroad Co., 16 Mont. 504 (1895). State v. Tyre Glen, 7 Jones 321 (N.C. 1859); 47. Stat. quoted in Potlatch Lumber Co. v. and Scheiber, “Road to Munn,” 373-376. Peterson, 88 Pac. 430 (Idaho, 1906). 35. See Charles Fairman, Reconstruction 48. Ibid. at 431.

and Reunion, 1864-88, Oliver Wendell 49. Oury v. Goodwin, 26 Pac, 376 (Ariz. Holmes Devise History of the Supreme 1891) at 382, and passim. This topic is a

Court, vol. VI, pt. 1 (New York, 1971), 918- main theme of analysis in Samuel C. Wiel, 1116, an exhaustive analysis of railroad Water Rights in the Western States, 3d ed., 2

bond-aid litigation. vols. (San Francisco, 1911), esp. chap. 8.

36. Penn. Coal Co. v. Sanderson, 113 Pa. 50. Ibid., I, 148-157, and passim. Unlike

126 (1886) at 149; quotation from Hughes v. western states which followed the ColoradoAnderson, 68 Ala. 280, in ibid., at 139. On Idaho liberal line on private use, California

railroad immunity from nuisance, compare and Oregon courts placed strict limitations Penn. Railroad Co. v. Marchant, 119 Pa. 541 upon expansion of the public-use doctrine to (1888), and see generally Lewis Orgel, Valu- support strictly private interests. Cf. Gilmer ation under the Law of Eminent Domain, 2d v. Lime Point, 18 Cal. 229 (1861), and, inter ed., 2 vols. (Charlottesville, 1953), I, 37-38. alia, Weil, Water Rights. In 1894 the New

37. On such Fourteenth Amendment York constitution was revised to include a

applications, see John P. Roche, ‘“Entrepre- provision declaring agricultural drainage to neurial Liberty and the Fourteenth Amend- be a “public use,” so as to permit construcment,’’ Labor History, 4 (1963), 3-31. tion of drainage lines across private property 38. Talbot v. Hudson, 82 Mass. 417 (1860) on payment of “just compensation.” But the

at 425. Interestingly, the case involved a high court of New York State promptly challenge to the state’s condemnation of a declared the new provision to be in violation dam originally built under the expropriation of the Constitution (New York, 1894 Consti-

power by a private canal company. tutional Convention, Revised Record, 1061;

39. 47N.H. 444 (1867) at 471. Matter of Tuthill, 163 N.Y. 133, [1900, 79 40. Colorado, 1876 Const., Art. II, sec.14 Am. St. Rep. 574)). cf. D.W. Hensel, “History of the Colorado 51. Pumpelly versus Green Bay, 13 Wall.

Constitution in the Nineteenth Century” 166 (1872). (Ph.D. diss., University of Colorado, 1957), 52. C.B. & Q. Railroad Co. v. Chicago, 166 167-174, esp. 169 on Colorado delegates’ ref- U.S. 226 (1897). erence to drainage-works provisions for emi- 53. Clark v. Nash, 198 U.S. 361 (1904); nent-domain devolution in Missouri and Fallbrook Irrigation District v. Bradley, 164

Illinois constitutions. U.S. 112 (1896).

468 Notes to Pages 140-145

54. Clark v. Nash, 198 U.S. 367ff. tion of American Imperialism,” The Journal 55. On this problem, cf. Hensel, of Economic History, 32 (1972), 359-360.

“Colorado Constitution,’’ 298-300. 63. Hurst, Law and the Conditions of 56. Hairston v. Danville & W. Railroad Freedom, 24 (italics added).

Co., 208 U.S. 598 (1907) at 605. The Court , ,

also upheld statutes which specilically 13. The Transformation in the required of estimated benefits in , , oe damages .; . offsetting Conception of Property in American appraising under eminent-domain takings; cf. Bauman v. Ross, 167 U.S. 548 Law, 1780-1860 (1897). On the other side of the coin, how- Morton J. HoRwITz ever, the Court reaffirmed and somewhat

| widened its requirement that consequential _ 1. For Blackstone, the right of property damages, when they utterly destroyed “the consisted of ‘‘that sole and despotic domin_use and value” of property, must be compen- ion which one man claims and exercises sated; cf. United States v. Lynah, 188 U.S. over the external things of the world, in total

| 445 (1903). — | exclusion of the right of any other individual 57. Orgel, Valuation, I, 35-38. Many of in the universe,” Sir William Blackstone, the same western states that adopted the Commentaries, II, 2.

broadest definitions of public use were also 2. Blackstone, Commentaries, II, 217-218. early in the movement to reform compensa- 3. See Francis H. Bohlen, “The Rule in tion law; hence it is all the more difficult to Rylands versus Fletcher,” University of put a dollar value on the subsidy effects of Pennsylvania Law Review, 59 (1911), 298. expanded eminent-domain law in the West. 4. Use your own [property] so as not to What is indisputable is the strategic impor- harm another’s. tance of the expanded doctrine of public use 5. Though there had been controversies — enterprises were given powerful instru- involving diversion of water for irrigation or ments to set themselves going, and without saw- and gristmills in the colonial period,

those instruments would probably have the building of the large New England cot-

foundered altogether. — ton mills after 1815 intensified the conflict.

58. Robert E. Cushman, Excess Condem- 6. Merritt v. Parker, 1 New Jersey L. 526, nation (New York, 1917) covers the subject 530 (Sup. Ct. 1795). See also Beissell v. thoroughly for that period. See also Flavel Sholl, 4 Dall. 211 (Pa. 1800); Livezay v. Shurtleff, Carrying Out the City Plan (New Gorgas (Pa. 1811), in Hugh H. Brackenridge,

York, 1914.) Law Miscellanies (Philadelphia, 1814),

59. The best single source of analysis and 454-456. documentation is Charles M. Haar, Land-Use 7. Perkins v. Dow, 1 Root 535 (1793), citPlanning: A Casebook on the Use, Misuse, ing Howard v. Mason (1783). “If I can dis-

, and Re-use of Urban Land, 2d. ed. (Boston, pose of, and absorb upon my land, the whole

1971). , of the stream excepting a sufficiency for nec60. Allison Dunham, “‘Giggs versus essary purposes,’ a legal commentator

Allegheny County in Perspective,” Supreme explained, “I have the prior right, because I

Court Review, 1962 (Chicago, 1963), 82. am above him on the stream and have the

, 61. Mimeographed, the White House, Jan- first opportunity” (Zephaniah Swift, A Sys-

uary 19, 1972. tem of the Laws of the State of Connecticut 62. See text at n. 26. The White House (Windham, Conn., 1796), II, 86.) This rule

policy document discussed above is did not, of course, express a theory of prior squarely within the tradition of imposing appropriation since, regardless of who first what are supposed to be American values occupied the stream, the upper proprietor and institutions ‘‘on less fortunate coun- was granted ‘“‘that artificial advantage which

tries,’ but particularly when American the situation of his ground will admit” investment interests are served, a topic dis- (ibid., 87). Indeed, it appears to be the only cussed in Robert B. Zevin, ‘‘An Interpreta- instance in American Law of adoption of the

469

Notes to Pages 145-147 ~ pre—civil-code French rule. See James Kent, 21. Story continued: ““The consequence of

Commentaries on American Law 4th ed. this principle is, that no proprietor has a

(New York, 1840), III, 439. right to use the water to the prejudice of

8. Ingraham v. Hutchinson, 2 Conn. 584, © another. It is wholly immaterial, whether the 591 (1818). Interestingly, the judge whose party be a proprietor above or below, in the opinion overruled these eighteenth-century course of the river; the right being common decisions was Zephaniah Swift, whose Sys- to all the proprietors on the river, no one has tem of Laws (1795) had justified them. See a right to diminish the quantity which will,

above note, 7. according to the natural current, flow to the g. W. Cushing, ‘‘Notes of Cases Decided proprietor below, or to throw it back upon a

_ in the Superior & Supreme Judicial Courts of proprietor above” (24 F. Cas. at 474).

Massachusetts from 1772 to 1789,’ Manu- 22 Id. script, Treasure Room, Harvard Law School. 23. Though Tyler v. Wilkinson has often 10. Weston v. Alden, 8 Mass. 136 (1811); mistakenly been understood to expound a Bent v. Wheeler (Mass. 1800), in James Sulli- doctrine of proportionate use, I have found van, The History of Land Titles in Massa- no subsequent case in which Story upheld

chusetts (Boston, 1801), 273-274. any interference with the flow, unless based 11. Palmer v. Mulligan, 3 Cai R. 307, 312 on prescriptive right as in Tyler itself. See (N. Y. Sup. Ct. 1805) (Spencer, J.); Ingraham Lauer, cited above note 20, p. 8. Indeed,

v. Hutchinson, 2 Conn. 584, 595 (1818) Story often seemed routinely to apply a Gould, J., dissenting). In Sherwood v. Burr, 4 “natural flow” rule in granting injunctive Day 244 (1810), the Connecticut Supreme relief. Farnum v. Blackstone Canal Corp., 8 Court resorted to the doctrine of prescription F. Cas. 1059 (No. 4675) (C.C.D.R.L 1830):

to deal with the novel problem of down- Mann v. Wilkinson, 2 Sumner 273

stream obstruction, thereby implying that (C.C.D.R.I. 1835). More illuminating still, in without long use the upstream owner would Webb v. Portland Mfg. Co., 29 F. Cas. 506

have no right of action for obstruction. (No. 17,332) (C.C.D. Me. 1838), he found 12. 3 Cai. R. 307, 313-14 (1805). against a defendant who had extracted a pro-

13. Id. at 314. _ portionate part of the water from a stream for 14. 15 Johns. 213, 218 (N.Y. 1818). mill purposes even though there was no 15. Id. at 218. proof of actual damage. In Whipple v. Cum16. Outside New York, I have found only berland Mfg. Co., 29 F. Cas. 934 (No. 17,516)

one other case before 1825 that followed the (C.C.D. Me. 1843), he upheld an action principle that diversion or obstruction of against a downstream mill owner for flowwater might be justified by a doctrine of rea- ing back water, again without proof of actual sonable use which took account of a right to injury to the plaintiff's mills. There was no equal exploitation of water; this is Runnels need to prove damage, he wrote, since: “the

, v. Bulle, 2 N. H. 532, 537 (1823). See also principle of law goes much further; for every Merritt v. Brinkerhoff, 17 Johns. 306 (1820). riparian proprietor is entitled to have the 17. Joseph H. Angell, A Treatise on the stream flow in its natural channel, as it has Common Law, in Relation to Watercourses been accustomed to flow, without any

1st ed. (Boston, 1824), 37. obstruction by any mill or riparian propri18. Angell, Watercourses, 37. -etor below on the same stream .. . And if any 19. 24 F. Cas. 472 (No. 14,312) (C.C.D.R.I. mill or riparian proprietor below on the

1827). same stream does... undertake to obstruct 20. Lauer correctly sees the “‘almost schi- or change the natural stream, then, although

zophrenic... nature’ of these early transi- the riparian proprietor above cannot estabtional water cases, which wavered between lish in proof, that he has suffered any sub“both the pre-existent law and the need for stantial damage thereby, still he is entitled to just apportionment of the water” (T.E. Lauer, recover nominal damages, as it is an inva“Reflections on Riparianism,”’ Missouri Law sion of his rights.”’ Id. at 934-36. By allowing

Review, 35 (1970), 8). , a damage action — and presumably an

470 Notes to Pages 147-153

injunction — without proof of actual injury, 29. Angell, Watercourses, 2d. ed. (1833),

Story went beyond the common law in vii.

restraining exploitation of water resources. 30. Damage without legal injury.

It was one thing to hold that economic 31. ‘The Law of Water Privileges,’ Amerdevelopment could not take place at ican Jurist, 2 (1829), 25, 27. another’s expense, and quite another to 32. 49 Mass. (8 Met.) 466 (1844). allow an existing riparian owner to prevent 33. Id. at 476-477. exploitation of surplus water [simply 34. Id. at 477. In more conventional cases because | he might use it at some future time. as well, Shaw’s court often insisted that any Not only was Story’s formulation contrary to use of water for manufacturing purposes was — any supposed right of equal use, but it also prima facie reasonable, regardless of propor-

resulted in a rule still more monopolistic tionality. See, e.g., Pitts v. Lancaster Mills, and exclusionary than anything the common 54 Mass. (13 Met.) 156 (1847), where a man-

law had required. ufacturing company was held justified in 24. Contrast Story’s views with those put obstructing a stream so long as “they

forth by the Vermont court in the same year: detained the water no longer than was nec‘The common law of England seems to be essary to raise their own head of water and that each land owner, through whose land a fill their own pond.” Id. at 158. See also Hoy stream of water flows, has a right to the - v. Sterrett, 2 Watts 327 (Pa. 1834). water in its natural course, and any diver- 35. 49 Mass. (8 Met.) at 477. sion of the same to his injury, gives him a right of action ... Should this principle be 14. The Law of the Commonwealth and adopted here, its effect would be to let the Chief Justice Shaw man who should first erect mills upon a small river or brook, control the whole and LEONARD W. LEVY

- defeat all the mill privileges from his mills 1. Draper v. Worcester & Norwich RR., 11 to the source.” In the absence of ‘wanton Metc. 505, 508 (1846).

waste” or “obstruction,” it allowed the 2. Alexis de Tocqueville, Democracy in

upstream proprietor to build a milldam that America, trans. Henry Reeve, I, chap. 16. In

would interfere with the natural flow of the Bowen translation, the passage reads:

water (Martin v. Bigelow, 2 Aiken 184, 187 ‘““Scarcely any political question arises in the

[Vt. 1827]). United States that is not resolved, sooner or 25. See e.g., Omelvany v. Jaggers, 2 S.C. later, into a judicial question” (ed. Phillips

(Hill) 634 (1835); Buddington v. Bradley, 10 Bradley [New York, 1954]) I, 290.

Conn. 213 (1834); Arnold v. Foot, 12 Wend. 3. Lemuel Shaw, “Profession of the Law

_ 330(N.Y. Sup. Ct. 1834). in the United States,’’ extract from an 26. Elliot v. Fitchburg R.R., 64 Mass. (10 address delivered before the Suffolk Bar,

Cush.).191, 195 (1852). May, 1827, American Jurist 7 (1832), 56, 65.

27. Snow v. Parsons, 28 Vt. 459, 462 4. (James) Willard Hurst, The Growth of (1858). For a much earlier recognition of American Law (Boston, 1950), p. 18.

this principle, see Hoy v. Sterrett, 2 Watts 5. Oscar Handlin and Mary F. Handlin, 327, 332 (Pa. 1834), in which the court, Commonwealth: A Study of the Role of Govthough citing Tyler v. Wilkinson for the ernment in the American Economy: Massapurpose of rejecting the plaintiffs claim to chusetts, 1774-1861 (New York, 1947), 31. a right derived from prior occupancy, nev- 6. Shaw, “Profession of the Law,’’ Ameriertheless held that if ‘the water was no can Jurist, 61; and see A Charge Delivered to longer detained than was necessary for a the Grand Jury for the County of Essex... proper enjoyment of it ... for the use of May Term, 1832 (Boston, 1832), 4.

[the defendant’s] mill, it is damage to 7. “Public Interests,’ Boston Commerical

which the plaintiff must submit.” Gazette, September 23, 1819, quoted by 28. Robert W. Fogel, Railroads and Amer- Handlin and Handlin, 54-55.

ican Economic Growth (Baltimore, 1964), 8. Ibid., 54. For the experience of other

123. states, see Louis Hartz, Economic Policy

, 471 Notes to Pages 153-165

and Democratic Thought: Pennsylvania, (1814). A third precedent of 1799 had been 1776-1860 (Cambridge, Mass., 1948), and unreported and was “‘lost.”’ James Neal Primm, Economy Policy in the 26. Sohier v. Mass. General Hospital, 3 Development of a Western State: Missouri, Cush. 483 (1849). 1820-1860 (Cambridge, Mass., 1854). For 27. Warren v. Mayor and Alderman of the colonial period through the Revolution, Charlestown, 3 Gray 84 (1854).

see Richard B. Morris, Government and 28. Commonwealth v. Coolidge, Law

Labor in Early America (New York, 1946). Reporter, V, 482{f. (1843). 9. E. Merrick Dodd, American Business 29. Jones v. Robbins, 8 Gray 329 (1857). Corporations until 1860 (Cambridge, 1954). 30. Fisher v. McGirr, 1 Gray 1 (1854); Sul-

44. livan v. Adams, 3 Gray 476 (1855); and 10. See Palmer Co. v. Ferrill, 17 Pick. 58 Robinson v. Richardson, 13 Gray 454 (1859).

(1835) and Hazen v. Essex Co., 12 Cush. 475 31. Commonwealth v. New Bedford

(1835). ,Bridge, 2 Grayv.339 C , 32. Commonwealth Essex Ceo Co., 13, Gray

’ 15 Gray 106 (1860).

Kone pode American Business Corpora- 239 (1859); Central Bridge Corp. v. Lowell,

12. 7 Cush. 53 (1851). 33. Commonwealth v. Farmers & 13. See Henry Steele Commager, “Joseph Mechanics Bank, 21 Pick, 542, 556 (1838).

Story,” in A. N. Holcombe et al., Gaspar G. 34. Shaw, “Charge to the Grand Jury, Bacon Lectures on the Constitution of the 1832,” 4: and idem, “Profession of the Law,”’

United States (Boston, 1953), 58, where the 62.

paraphrase omits “historians.” 35. See Pound, Spirit of the Common 14. Commonwealth v. Alger, 7 Cush. 53, Law, 13-15, 18-20, 27-28 and 37.

83-84 (1851). 36. Louis Hartz, The Liberal Tradition in 15. Roscoe Pound, The Spirit of the Com- America (New York, 1955), 89.

mon Law (Boston, 1921), 53-54. 37. Pound, Spirit of the Common Law, 15. 16. Quotations are from Shaw’s opinions 38. Alger v. Thacher, 19 Pick. 51, 53 in the Alger case and in Commonwealth v. (1837) per Morton, J.

Tewksbury, 11 Metc. 55 (1846). 39. Ibid. at 54.

17. Quoted by Pound, Spirit of the Com- 40. Ibid. italics added. This was a com-

mon Law, 53. mon-law case not involving any statute.

18. Commonwealth v. Farmers & 41. Pound, Spirit of the Common Law, 19. Mechanics Bank, 21 Pick. 542 (1839). 42. Brown v. Kendall, 6 Cush. 292 (1850); 19. Crease v. Babcock, 23 Pick. 334 Shaw v. B. & W. RR. 8 Gray 45 (1857). (1839).

20. Commonwealth v. Blackington, 24 ; ;

Pick, 352 (1837); Fisher v. McGirr, 1 Gray 1 1S. Emerging Notions of Modern (1854); Brown v. Perkins, 12 Gray 89 (1858); Criminal Law in the Revolutionary Era:

Commonwealth v. Howe, 13 Gray 26 (1859). An Historical Perspective , There are the leading cases among dozens. WILLIAM E. NELSON

21. Worcester v. Western R.R., 4 Metc. |

564, 566 (1842). 1. See, e.g., George A. Billias, ed., Law 22. Roxbury v. B. & P. RR., 6 Cush. 424, and Authority in Colonial America (Barre,

431-432 (1850). Mass., 1965); Julius Goebel, Jr., and T. Ray23. B. & W. RR. v. Western RR., 14 Gray mond Naughton, Law Enforcement in Colo253 (1859), and L. & W. C. RR. v. Fitchburg nial New York (New York, 1944); Arthur P.

RR., 14 Gray 266 (1859). Scott, Criminal Law in Colonial Virginia

24. Davidson v. B. & M. RR., 3 Cush. 91 (Chicago, 1930); Raphael Semmes, Crime (1849). See also Baker v. Boston, 12 Pick. 183 and Punishment in Early Maryland (Balti-

| (1831). more, 1938).

25. Wetherbee v. Johnson, 14 Mass. 412 2. See, e.g., George L. Haskins, Law and

(1817); Holden v. James, 11 Mass. 396 Authority in Early Massachusetts (New

472 ,

Notes to Pages 165-168 , York, 1960); Edwin Powers, Crime and Pun- 14. Of sixteen accused between 1760 and ishment in Early Massachusetts, 1620-1692 1774 of Sabbath breaking, there were eight

, (Boston, 1966). Seven of the ten articles in farmers, four artisans, two laborers, and two the Billias book cited above, deal with gentlemen. The statistics given are not for

Massachusetts. , , total prosecutions, but only for cases in

3. Haskins, Law and Authority in Early which the courts records give defendants’

Massachusetts, 16. occupations.

| 4, Grand Jury Charge by Hutchinson, C. J., 15. The King v. How, Msex Super. Ct., Suffolk Super. Ct., March 1768, in Josiah Jan. 1762, f. 285 (twenty years of hard labor Quincy, Jr. Reports of Cases Argued and for counterfeiting). Adjudged in the Superior Court of Judica- 16. An Act for the Punishment of Fornicature of the Province of Massachusetts Bay, tion, and for the Maintenance of Bastard between 1761 and 1772, ed. Samuel M. Children, Mass. Acts and Laws 1785, ch. 66 Quincy (Boston, 1865}, 258, 259. (enacted March 15, 1786) [hereafter Fornica-

5. Engel v. Vitale, 370 U.S. 421, 425 tion Actl.

(1962). . 17. In 1786, there were at least eight 6. The chief towns of Middlesex mm the cases, the same number as in 1785, one more late 1700s wer e Charlestown, Cambridge, than in 1780, and only one less than in 1764, poncords Lexington, Newton, Watertown, while in 1787, there were at least twelve

7. LH. Butterfield, Leonard C. Faber, and eonvictions:

Wendell D. Garrett, eds., Diary and Autobio- 18. There were twelve prosecutions dur-

, graphy of John Adams, 4 vols. (Cambridge, ing these three years. No reason for this sud-

Mass., 1961), II, 27. den increase is apparent, although possibly 8. Blackstone, Table of Contents, Com- it was related to the “Second Awakening

mentaries, IV. _ then occurring in New England. See Perry 9. See Scott, Criminal Law in Colonial Miller, The Lif e of the Mind in America from Virginia. & ; 280-281. the Revolution to the Civil War (New York, 10. This interest is indicated by the 1965), 6-7.

requirement that a man found guilty of forni- 19. Remarks on the Existing State of the cation give a bond to the town as a guarantee Laws of Massachusetts Respecting Violaof his undertaking to support the child (see tions of the Sabbath (1816), 3. The King v. Mallet, Msex Gen. Sess., May 20. See Paul Goodman, The Democratic-

1760, at 582). Republicans of Massachusetts (Cambridge,

11. Ten women were prosecuted even Mass., 1964), 89. though at the time of their prosecution they 21. Timothy Dwight, “A Discourse on had married their partners. See, e.g., The Some Events of the Last Century,” delivered King v. Patterson, Msex Gen. Sess., March January 7, 1801, quoted in V. Stauffer, New

1761, at 618. , England and the Bavarian Illuminati, 12. Between 1760 and 1775, there were Columbia University Studies in History,

thirty-one prosecutions for offenses against Economics, and Public Law, 82 (1918), 25.

the persons of individuals, sixteen for 22. V. Stauffer, The Bavarian Iluminati, offenses against public trade and _ health, 24. fourteen for offenses against public justice, 23. William Cushing, ‘‘Notes on Biennial eleven for offenses against government, and Elections and Other Subjects under Debate

four for homicide. — in Massachusetts Ratifying Convention, Jan.

13. See Simeon Howard, “‘A Sermon 1788,” in William Cushing Papers, New

Preached before the Honorable Council and York Historical Society.

Honorable House of Representatives of the 24. V. Stauffer, The Bavarian IJuminati,

State of Massachusetts-Bay,” in John W. 26.

Thornton, The Pulpit of the American Revo- 25. See, e.g., Remarks on the Existing lution (Boston, 1860), 355, 382-383, 393-394. State of the Laws in Massachusetts Respect-

473

Notes to Pages 168-170

ing Violations of the Sabbath (1816), 5, 12, 39. Gamaliel Bradford, Description and for examples of the use of such terminology. Historical Sketch of the Massachusetts State 26. V. Stauffer, The Bavarian Illuminati, Prison (Charlestown, 1816), 10. |

26. , 40. The act authorizing the penalty in lar- , 27. While there had been only two cases ceny cases so provided; Mass. Acts and Laws

each in 1782 and 1783, there were eleven in 1784, ch. 66, §3. |

1784 and 1785. 41. In three cases in the Supreme Judicial

28. Oscar Handlin and Mary F. Handlin, Court’s November term of 1804, for exam~ Commonwealth: A Study of the Role of Gov- ple, the following penalties were imposed: ernment in the American Economy: Massa- (1) one hour on the gallows plus a whipchusetts 1774-1861 (New York, 1947), 35-36, ping of thirty stripes plus six years at hard 59-64; Samuel E. Morison, The Maritime labor, Commonwealth v. Tuttle, Msex Sup. History of Massachusetts, 1783-1860 (Bos- Jud. Ct., Nov. 1804, at 78; (2) payment of ton, 1961), 30-32, 35-36; William B. Weeden, treble damages plus seven years at hard Economic and Social History of New Eng- labor, Commonwealth v. Moore, Msex Sup.

land, 2 vols. (Boston, 1890), II, 843. Jud. Ct., Nov. 1804, at 79; and (3) a whip29. See Morison, Maritime History of ping of thirty stripes plus either payment of

Massachusetts, 166-167. treble damages or sale in service for three 30. The drop between 1790 and 1791 was years, Commonwealth v. Moore, Msex Sup. dramatic. There were twelve cases in 1789, Jud. Ct., Nov. 1804, at 80.

nineteen in 1790, three in 1791, and five in 42. Harry E. Barnes, The Evolution of

1792. Penology in Pennsylvania: A Study in 31. There were seventeen cases in 1800 American Social History (Indianapolis,

and twenty in 1801. , 1927).

32. See Morison, Maritime History of 43. See Act to Prevent Forgery, and for

Massachusetts, 191. the Punishment of Those Who Are Guilty of 33. There were twenty-two cases in 1807, the Same, Mass. Acts and Laws 1784, ch. 67.

twenty-four in 1808, and eighteen in 1809. 44, Address by Governor John Hancock 34. Josiah Quincy, Remarks on Some of to a Joint Session of the Massachusetts Legisthe Provisions of the Laws of Massachusetts lature, January 31, 1793, quoted in Edwin

Affecting Poverty, Vice and Crime (Cam- Powers, Crime and Punishment in Early

bridge, Mass., 1822.) Massachusetts (Boston, 1966), 192-193.

35. The twenty-seven were laborers. Six 45. Powers, Crime and Punishment, 193. of the remaining cases were against artisans 46. Gamaliel Bradford, State Prisons and

and five against farmers. the Penitentiary System Vindicated | 36. Of the fifty-three, forty-six were labor- (Charlestown, 1821), 5.

ers and seven were “transient persons.’’ The 47. Bradford, Description and Historical remaining defendants were fifteen farmers, Sketch, 15.

two artisans, and two gentlemen. 48. Bradford, State Prisons, 12. 37. Speech by His Excellency Caleb 49. Thomas B. Chandler, “A Friendly

Strong, Esq., before the Senate and House of Address to All Reasonable Americans on the Representatives of the Commonwealth of Subject of Our Political Confusions’”’ (New _ Massachusetts, January 15, 1802, in Patrio- York, 1774), 5, quoted in Bernard Bailyn, tism and Piety: The Speeches of His Excel- ed., Pamphlets of the American Revolution,

1808), 48, 50. 198-199.

lency Caleb Strong, Esq. (Newburyport, 1750-1776 (Cambridge, Mass., 1965), I, 38. Act for the Punishing and the Prevent- 50. Grand Jury Charge by Hutchinson, C. ing of Larcenies, Mass. Acts and Laws 1784, J., Suffolk Super. Ct., August 1766, in ch. 66 (enacted March 15, 1785); Act Provid- Quincy, Reports of Cases Argued and ing a Place of Confinement for Thieves and Adjudged in Massachusetts Bay, 218, 220. Others to Hard Labor, Mass. Acts and Laws 51. Grand Jury Charge by Hutchinson, C.

1784, ch. 63 (enacted March 14, 1785). J. Suffolk Super. Ct., March 1765, in Quincy,

474

Notes to Pages 170-176

Reports of Cases Argued and Adjudged in 6. James E. Cutler, Lynch-Law: An Investi-

Massachusetts Bay, 110. gation into the History of Lynching in the 52. Diary and Autobiography of John United States (New York, 1905), 24-31.

~ Adams, I, 260. 7. In addition to Cutler, Lynch Law, see 53. Letter from Oliver Prescott, Town Walter White, Rope & Faggot: A Biography Clerk of Groton, Mass., to Town of Boston, of Judge Lynch (New York, 1929), and Mass., 1774, quoted in Clifford K. Shipton, Arthur F. Raper, The Tragedy of Lynching Sibley’s Harvard Graduates, 1746-1750 (Chapel Hill, 1938).

(Boston, 1962), 570. 8. Cutler, Lynch-Law, 180-181, and pas54. Diary and Autobiography of John sim. A total of 3,337 Americans were

Adams, I, 264. lynched from 1882 to 1903. Of the victims, 55. Grand Jury Charge by Hutchinson, C. 1,169 were whites, 2,060 were Negroes, and

J.. Suffolk Super. Ct., August 1776, in 108 were of other races. ,

Quincy, Reports of Cases, Argued and 9. Stanley F. Horn, Invisible Empire: The

Adjudged in Massachusetts Bay, 218, 219. Story of the Ku Klux Klan, 1866-1871 (Bos56. Bernard Bailyn, Introduction to Pam- ton, 1939).

phlets of the American Revolution, 1750- 10. Two outstanding recent studies of the 1776, 190; Gordon S. Wood, ‘“‘Rhetoric and second Ku Klux Klan are David M. — Reality in the American Revolution,” Wil- Chalmers, Hooded Americanism: The First liam and Mary Quarterly, 3rd ser. 23 (1966), Century of the Ku Klux Klan, 1865-1965

3, 5-6, 11. (Garden City, N.Y., 1965); and Charles C.

57. Message from Governor Hancock to Alexander, The Ku Klux Klan in the Souththe General Court, quoted in Powers, Crime west (Lexington, Ky., 1965).

and Punishment, 193. 11. Ray A. Billington, The Protestant Cru-

58. Gustav A. Koch, Republican Religion: sade, 1800-1860: A Study of the Origins of

The American raga) and theYork, Cult of American Nativism (New York, 1938.) Reason (New 1933), 295. 7 59. Conmmonwealth v. Waite, 5 Mass. 261, 12. J ohn E. Coxe, , The New Orleans

na (109) Mafia neden Louiiana Historia Qur

60. Bradford, State Prisons, 51. dall, “Who Killa De Chief,” ibid., 22 (1939),

CO 492-530. The lynching of the Italians (which

16. Violence and Vigilantism in brought a threat of an Italo-American war)

American History was the result of the vigilante action.

, RICHARD MAXWELL BROWN Although there had been a recent criminal

1. Virgil C. Jones, The Hatfields and the incident (the murder of the police chief)

McCoys (Chapel Hill, 1948). which to some seemed to justify vigilante 2. Rufus L. Gardner, The Courthouse action, the lynching was not merely a simple Tragedy, Hillsville, Va. (Mt. Airy, N.C., case of vigilante action. Ethnic prejudice

1962). against the Italians (who were allegedly 3. One of the most spectacular of the fam- members of a local Mafia organization) was

ily factional feuds in New Mexico was the crucial. 7

Lincoln County War (1878) from: which Billy 13. D onald L. Kinzer, An Episode in Antithe Kid emerged to fame. See Maurice G. Catholicism: The American Protective AssoFulton, History of the Lincoln County War, ciation (Seattle, 1964).

ed. Robert N. Mullin (Tucson, 1968). 14. See, for example, Richard Walsh,

4. Earle R. Forrest, Arizona’s Dark and Charleston’s Sons of Liberty: A Study of the. Bloody Ground (Caldwell, Idaho, 1936); Artisans, 1763-1789 (Columbia, S.C., 1959), Zane Grey, To the Last Man (New York, 3-55, and R.S. Longley, ‘‘Mob Activities in

1922). Revolutionary Massachusetts,” New Eng5. Mitford M. Mathews, ed., A Dictionary land Quarterly, 6 (1933), 108-111.

of Americanisms on Historical Principles, 15. On the events of 1877, see one of the one-volume ed. (Chicago, 1956), 1010. most important works on the history of

475

Notes to Pages 176-180

American violence: Robert V. Bruce, 1877: 1771) did not constitute a vigilante Year of Violence (Indianapolis, 1959). movement, but rather represented a violent 16. ... A seminal treatment is Arthur I. agrarian protest against corrupt and galling Waskow, From Race Riot to Sit-In, 1919 and local officials and indifferent provincial

the 1960’s: A Study in the Connections authorities.

between Conflict and Violence (Garden City, 26. The 96th meridian approximately N.Y., 1966); two important case studies are coincides with both physiographic and state Elliot M. Rudwick, Race Riot at East St. boundaries. Physiographically it roughly Louis: July 2, 1917 (Carbondale, Ill., 1964), separates the prairies of the East from the and Robert Shogan and Tom Craig, The semiarid Great Plains of the West. The states Detroit Race Riot: A Study in Violence (Phi- of Minnesota, Iowa, Missouri, Arkansas, and ladelphia, 1964), which covers the 1943 riot. Louisiana fall into the province of eastern

17. Walter Prescott Webb, The Texas vigilantism. The states of North and South

Rangers (Boston, 1935). Dakota, Nebraska, Kansas, and Oklahoma

18. Roger Lane, Policing the City: Boston, mainly fall into the area of western vigilant-

1822-1855 (Cambridge, Mass., 1967). ism. In Texas the 96th meridian separates 19. Martha Derthick, The National Guard east Texas from central and west Texas, in Politics (Cambridge, Mass., 1965), 16-17. hence east Texas vigilantism was a part of 20. James D. Horan,The Pinkertons: The, eastern vigilantism, while central and west Detective Dynasty that Made History (New Texas properly belongs to the western vari-

York, 1968). ety. For the sake of convenience, however,

21. See, for example, Anthony S. Nico- all of Texas vigilantism (along with that of losi, “The Rise and Fall of the New Jersey the Dakotas, Nebraska, Kansas, and OklaVigilant Societies,” New Jersey History, 86 homa) has been included in the tables under (1968), 29-32, and Hugh C. Gresham, The the heading of western vigilantism. _ .

Story of Major David McKee, Founder of the 27. Lynn Glaser, Counterfeiting in Anti Horse-Thief Association (Cheney, America ... (New York, 1968), chap. 5. On

Kans., 1937). the relationship between counterfeiting and 22. J[eremiah] P. Shalloo, Private Police: the frontier money shortage, see Ruth A. GalWith Special Reference to Pennsylvania laher, “Money in Pioneer lowa, 1838-1865,

; . Iowa Journal of 42-45. History and Politics, 31 . . (1934),

(Philadelphia, 1933), 58-134.

23. It will probably be impossible ever to 28. The literature on this crucial organiobtain a definitive count of American vigi- zation is very large. The best and most comlante movements; many small movements plete account (although highly prejudiced in undoubtedly leit no traces in historical favor of the vigilantes) is the second volume SOUTCES, especially in the old Northwest and of Bancroft’s Popular Tribunals. See also, old Southwest in the first twenty or thirty Richard Maxwell Brown, “Pivot of Ameri-

years of the nineteenth century. Three can Vigilantism: The San Francisco Vigihundred and twenty-six movements are pre- lance Committee of 1856,” Reflections of

sently known... Western Historians, ed. John A. Carroll (Tuc24. There have been, indeed, urban as son, 1969), 105-119. The 1856 vigilance

well as rural vigilante movements. The grea- committee was preceded by that of 1851, test of all American vigilante movements — which has been the subject of an outstanding the San Francisco Vigilance Committee of scholarly study by Mary Floyd Williams, 1856 — was an urban one. Vigilantism has History of the San Francisco Committee of by no means been restricted to the frontier, Vigilance of 1851: A Study of Social Control although most typically it has been a frontier on the California Frontier in the Days of the

phenomenon. Gold Rush (Berkeley, 1921). See also, Ban-

25. Aside from the South Carolina regula- croft, Popular Tribunals, I, 201-428; and tors there was little vigilante activity in the George R. Stewart, Committee of Vigilance: original thirteen states of the Atlantic sea- Revolution in San Francisco, 1851 (Boston, board. The North Carolina regulators (1768- 1964).

476 Notes to Pages 180-184

29. See, especially, Bancroft, Popular Tri- 37. The following sketch of the three-

bunals, I, 441ff. level American community structure is

30. Thomas J. Dimsdale,The Vigilantes of based upon my own research and recent Montana... (Virginia City, Mont. 1866); studies on American society. Among the latNathaniel Pitt Langford, Vigilante Days and ter are Jackson Turner Main, The Social Ways..., 2 vols. (Boston, 1890); Hoffman Structure of Revolutionary America (PrinceBirney, Vigilantes (Philadelphia, 1929). ton, 1965), and, for the nineteenth century - 31. Granville Stuart, Forty Years on the Stephen Thernstrom, Poverty and Progress: Frontier, ed. Paul C. Phillips 2 vols (Cleve- Social Mobility in a Nineteenth Century City land, 1925), II, 195-210; Michael A. Leeson, (Cambridge, 1964); Ray A. Billington, History of Montana: 1739-1885 (Chicago, America’s Frontier Heritage (New York,

1885), 315-316. 1966), chap. 5, ‘“‘The Structure of Frontier

32. Erna B. Fergusson, Murder and Mys- Society”; and Merle Curti, The Making of an tery in New Mexico (Albuquerque, 1948), 15- American Community (Stanford, 1959), 5632. Chester D. Potter, ““Reminiscences of the 63, 78, 107-111ff., 126, 417ff., 448.

Socorro Vigilantes,’’ New Mexico Historical 38. On the marginal “lower people’ of

Review, 40 (1965), 23-54. the South (where they are often called “poor 33. On the Butler County vigilantes, see whites” or ‘‘crackers’’) see Brown, South

A.T. Andreas, History of the State of Carolina Regulators, 27-29, and Shields Kansas... , 2 vols. (Chicago, 1883), 1431- McIlwaine, The Southern Poor White from 1432, and the correspondence of Governor Lubberland to Tobacco Road (Norman, _ J.M. Harvey, File on County Affairs, 1869- Okla., 1939), a literary study. For lower peo1872 (MSS in Archives Department of ple in the North, see Bernard De Voto, Mark Kansas State Historical Society, Topeka). Twain’s America (Boston, 1932), 54-58, and Materials on Kansas vigilantism are also to George F. Parker, Iowa Pioneer Foundations, be found in Nyle H. Miller and Joseph W. 2 vols. (Iowa City, 1940), II, 37-48. Snell, Why the West Was Wild ... (Topeka, 39. Kai Erikson, Wayward Puritans: A 1963), and Genevieve Yost, ‘‘History of Study in the Sociology of Deviance (New Lynching in Kansas,” Kansas Historical ~ York, 1966), chap. 1. Quarterly, 2 (1933), 182-219; see also Robert 40. J. Milton Yinger, “Contraculture and |

R. Dykstra, The Cattle Towns (New York, Subculture,’’ American Sociological

1968). Review, 25 (1960), 629, holds that a contra34. The classic (but far from flawless) culture occurs ‘wherever the normative sys-

contemporary account by the antiregulator tem of a group contains, as a primary Asa Shinn Mercer was The Banditti of the element, a theme of conflict with the values

Plains... (Cheyenne, 1894). A very good of the total society...” See also, David M. recent study is Helena Huntington Smith, Downes, The Delinquent Solution: A Study The War on Powder River (New York, 1966); in Subcultural Theory (New York, 1966),

general treatments of Western vigilantism 10-11. are found in Bancroft, Popular Tribunals, I, 41. See, for example, De Voto, Mark 593-743; Wayne Gard, Frontier Justice (Nor- Twain’s America, 58-62, and Parker, Iowa man, Okla., 1949), chap. 14 and Carl Coke Pioneer Foundations, II, 37-48, 247-265.

Rister, ‘Outlaws and Vigilantes of the 42. David Donald, ed., “The AutobioSouthern Plains,’’ Mississippi Valley Histor- graphy of James Hall, Western Literary Pio-

ical Review, 19 (1933), 537ff. neer,’’ Ohio State Archaelogical and 35. The figure of seventy-nine killings Historical Quarterly, 56 (1947), 297-298. was gained from an analysis of Bancroft’s 43. Dimsdale, Vigilantes of Montana, p. narrative in Popular Tribunals, I, 515-576. 116. 36. This distinction between ‘‘colonized’”’ 44. Fred M. Mazzulla, ‘‘Undue Process of

and “cumulative” new communities was Law — Here and There,” Brand Book of formulated by Page Smith in As a City upon Denver Westerners, 20 (1964), 273-279. Dr.

| a Hill: The Town in American History (New Osborne became governor of Wyoming in

York, 1966), 17-36. 1893.

477

Notes to Pages 185-193

45. Although at present I know of only (1926), 165-180, which covers Rhode Island 729 vigilante killings, it is surely possible between 1897 and 1927; Sam Bass Warner, that American vigilantism took as many as a Crime and Criminal Statistics in Boston thousand lives and perhaps more. In gen- (Boston, 1934); Elwin H. Powell, ‘Crime as a eral, the statistics in this paper are tentative. Function of Anomie,” Journal of Criminal Future findings might alter some of the fig- Law, Criminology, and Police Science 57 ures, but it is not likely that the broad trends (1966), 161, covering Buffalo from 1854 to revealed by the statistics in this paper would 1956; and Theodore Ferdinand, ‘‘The Crimi-

be significantly changed. , nal Patterns of Boston since 1849,’ Ameri-

46. On Coleman, see... James A. B. can Journal of Sociology 72 (1967), 84-89, Scherer, The Lion of the Vigilantes: William which runs to 1951. These all differ in pur-

T. Coleman and the Life of Old San Franci- pose and sophistication, and none are

sco (Indianapolis, 1939). directly concerned with the long-term 47. See, for example, Anthony S. Nico- decline, which helps to make their results losi, “The Rise and Fall of the New Jersey the more striking. Vigilant Societies,” New Jersey History, 86 3. A survey of many of the official and

(1968), 29-32. , criminal records of Boston and Massachu-

48. James Stuart, Three Years in North setts is contained in Roger Lane, Policing the America 2 vols, (Edinburgh, 1933), I, 212- City: Boston, 1822-1885 (Cambridge, Mass., - 213. Jack K. Williams, ‘Crime and Punish- 1967), 225-229, 239-241.

ment in Alabama,’ Alabama Review, 6 4. See the Works by Ferdinand, Warner,

(1953), 26. and Lane, above, nn. 2 and 3. There is no 49. Jerome C. Smiley, History of Denver attempt in them, or in this paper, to measure

(Denver, 1901), 349 (emphasis mine). the extent of statutory or ‘white-collar’ 50. M.H. Mott, History of the Regulators crime. of Northern Indiana (Indianapolis, 1859), 5. Thorstein Sellin and Marvin E. Wolf-

15-18. , gang, The Measurement of Delinquency

51. Alfred J. Mokler, History of Natrona (New York, 1964), 31. County, Wyoming 1888-1922 ... (Chicago, 6. Ferdinand, ‘Criminal Patterns of Bos-

1923). ton,” 87. Together with roughly similar 52. Mott, Regulators of Northern Indiana, results in Powell’s study of Buffalo, these 17. figures suggest that the main conclusions of 53. Denver Tribune, Dec. 20, 1879, cited the present paper, which is largely confined

in John W. Cook, Hands Up..., 2d ed. to the nineteenth century, may be projected

, | ton,’ 99. |

(Denver, 1897), 103. up to the founding of the Uniform Crime 54. Robert B. David, Malcolm Campbell, Reports and beyond.

Sheriff (Casper, Wyo., 1932), 18-32. 7. Ferdinand, “Criminal Patterns of Bos17. Urbanization and Criminal Violence 8. Statewide arrest figures were not com-

. .the piled until very lateqin the nineteenth cenin Nineteenth Century: ng those for different citi Massachusetts as a Test Case tury, SN COM PATINS NNO8E 1OT NST’ es : a involves many of the same problems as

ROGER LANE plague the students of the Uniform Crime Reports.

1. See The Challenge of Crime in a Free 9. In this paper, except where specifically Society: A Report by the President’s Com- noted, no distinction is made between vio-

mission on Law Enforcement and the lent crimes — against the person — and

Administration of Justice (Washington, D.C., other serious offenses. Such terms as

1967), 29. ‘crime’ and “disorder’’ are used to cover

2. Four studies are especially germane: both. Harold A. Phelps, “Frequency of Crime and 10. Cf. The Challenge of Crime, 235, and , Punishment,” Journal of the American Insti- Lane, Policing the City, passim, especially tute of Criminal Law and Criminology, 19 112-113.

478

Notes to Pages 194-208

11. Alice Felt Tyler, Freedom’s Ferment: Mass., 1822), these last four words became a Phases of American Social History to 1860 stock phrase among the Commonwealth’s (Minneapolis, 1944), chap. 13, especially p. reformers.

311. 23. Lane, Policing the City, esp. pps. 12212. Lane, Policing the City, 41, 71. 125, 128-134, 142-156, and 213-219. 13. Unfortunately neither the federal nor 24. Lincoln Steffens, Autobiography

the state census permits an accurate state- (New York, 1931), 285-291. wide count of policemen during the nine- 25. In 1865, inspired by a fear of returning

teenth century. veterans much like that following World 14. Lane, Policing the City, pp. 230-232. War II, the police made some 2,532 such The trend has continued. Modern police, arrests. See Lane, Policing the City, 149.

despite the introduction of patrol cars and 26. Ibid., 117.

call wagons, make fewer arrests in general than did their predecessors, especially when

the whole class of minor auto violations is 18. Chattels Personal

eliminated. | 15. Quoted in ibid., 25. For the other KENNETH M. STAMPP information in this paragraph see chap. 2,

passim. 1. Extracts from the slave codes presented

16. Annual Report of the Commissioners in this chapter were taken from the legal of Police of the City of Boston for ... 1885 codes or revised statutes of the southern

(Boston, 1885), 28-30. states. See also John C. Hurd, The Law of 17. Lane, Policing the City, 173. Freedom and Bondage in the United States

18. Population figures are from the (Boston, 1859-1862), and the various studies Census of Massachusetts ... 1905 (Boston, of slavery in individual states. 1909), I, xxxi. The urban definition based on 2. Helen T. Catterall, ed., Judicial Cases

a population of 8,000. concerning American Slavery and the Negro 19. It should be noted that after the 1880s, (Washington, D.C., 1926-1937), I, 311.

when Boston already had nearly 2 police- 3. Catterall, ed. Judicial Cases, I, 287; II, men per 1,000 inhabitants, which is close to 76-77, 221.

the present nationwide average for major 4. Ibid., IU, 68. cities, it was the smaller places only where 5. Wilmington (N.C.) Journal, July 12, the arrest rate continued to climb dramatic- 1853, quoting and commenting upon an edially. Boston, because of its very small geo- torial in the Anderson (S.C.) Gazette.

graphical area, was ahead of most American 6. Catterall, ed., Judicial Cases, I, 149cities in this respect. It was still possible in 150, 311; II, 112. other places to raise the arrest figures by 7. Ibid., II, 425-26, 561; James H. Easterby, extending patrol and demanding higher ed., The South Carolina Rice Plantation as standards in previously neglected areas, Revealed in the Papers of Robert F. W. Allsuch as outlying slums. This process and the ston (Chicago, 1945), 69. reduction of the “dark figure’ which results 8. Catterall, ed., Judicial Cases, II, 440; III, from better policing in general may account 24. for many apparent “‘rises’’ in crime rates 9. Ibid., I, 390; II, 103, 541-542; III, 224.

which are still occurring. 10. Richmond Enquirer, December 8,

20. Oscar Handlin, Boston’s Immigrants: 1831. A Study in Acculturation, rev. ed. (Cam- 11. Catterall, ed., Judicial Cases, II, 168.

bridge, Mass., 1959), 244. 12. Southern Presbyterian, quoted in De 21. Lane, Policing the. City, 72-74, 90-91 Bow’s Review, 18 (1855), 52; Farmers’ Regisand 94-95. ter, 4 (1836), 181. 22. First used by Josiah Quincy in his 13. Catterall, ed., Judicial Cases, II,

“Remarks on Some of the Provisions Affect- 520-521. : ing Poverty, Vice, and Crime’’ (Cambridge, 14. Ibid., Il, 240-241.

, 479

Notes to Pages 208-221

15. Ibid., Il, 182; Howell M. Henry, The 34. Henry, Police Control, 58-61, 63-64; Police Control of the Slave in South Caro- letter from Albert Rhett in Charleston lina (Emory, Va., 1914), 48; Joseph H. Ingra- Courier, January 27, 1842.

ham, The South-West by a Yankee (Ann 35. Alexandria (La.) Red River RepubliArbor, Mich., 1966), II, 72-73; Ulrich B. Phil- can, January 8, 1848; Harrison A. Trexler, lips, American Negro Slavery (New York, Slavery in Missouri, 1804-1865 (Baltimore,

1918), 497-498. | 1914), 79. 16. Henry, Police Control, 52; Charles S. 36. Catterall, ed., Judicial Cases, II, 161Sydnor, Slavery in Mississippi (Gloucester, 62; John Hope Franklin, ‘Slaves Virtually

Mass., 1933), 83. . Free in Ante Bellum North Carolina,” Jour-

17. Undated petition from Chester Dis- nal of Negro History, 18 (1943), 284-310; trict, South Carolina Slavery Manuscripts Richard B. Morris. “Labor Controls in Mary-

Collection; Clement Eaton, Freedom of land in the Nineteenth Century; Journal of Thought in the Old South (Durham, N.C., Southern History, 14 (1948), 385-387.

1940), passim. 37. Catterall, ed., Judicial Cases, II, 442. 18. Austin, Texas State Gazette, February 38. Ibid., III, 1-3, 61.

19, 1859. 39. Ibid., II, 392; Charleston Courier, Sep19. Wilmington (N.C.) Journal, August tember 7. 1857.

24, 1849; Catterall, ed., Judicial Cases, Ill, 40. Catteral, ed., Judicial Cases, Ill, 1-2.

666. - . 41. Ibid., II, 49-50. 20. Ulrich B. Phillips, Plantation and Frontier Documents, 1649-1863, Illustrative

of Industrial History in the Colonial and 19. The American Civil War as a Antebellum South (Cleveland, 1909), II, Constitutional Crisis 113-114.

21. Austin, Texas State Gazette, July 22, ARTHUR BESTOR 1854.

22. Jackson Mississippian, February 26, 1. A contrary view is advanced by Sidney 1858; Tallahassee Floridian and Journal, Hook: “The validity of the historian’s findApril 11, 1857; American Farmer, II (1829), ings will... depend upon his ability to dis167; Gwin G. Johnson, Ante-Bellum North cover a method of roughly measuring the Carolina: A Social History (Chapel Hill, relative strength of the various factors pres-

1937), 515-516. ent” Theory and Practice in Historical 23. Virginia Legislative Petitions (Mss., Study: A Report of the Committee on His-

Virginia State Library, Richmond). toriography (Social Science Research Coun24. Austin, Texas State Gazette, Sep- cil, Bulletin 54 [New York, 1946,] 113).

tember 12, 1857. Hook, writing as a philosopher, insists that 25. Catterall, ed., Judicial Cases, II, 530. his criterion is part of the “pattern of inquiry

26. Ibid., Il, 412-413. which makes a historical account scientific”’

27. Ibid., II, 107. (ibid., 112). But, as another philosopher,

28. Ibid., I, 549-550; III, 35-36. Ernest Nagel, points out, “‘the natural 29. Ibid., II, 70-71, 132-34. sciences do not appear to require the impu30. Henry, Police Control, 79; Thomas tation of relative importance to the causal R.R. Cobb, An Inquiry into the Law of Negro variables that occur in their explanations.”

Slavery in the United States of America On the contrary, “if a phenomenon occurs

(Philadelphia, 1858), 97-98. only where certain conditions are realized, 31. Frederick Douglass, My Bondage and all these conditions are equally essential,

My Freedom (New York, 1855), 127. -and no one of them can intelligibly be 32. Quoted in Sydnor, Slavery in Missis- reguarded as more basic than the others”

sippi, 250-251. (Ernest Nagel, ‘‘“Some Issues in the Logic of 33. Catterall, ed., Judicial Cases, II, Historical Analysis,’ Scientific Monthly, 74

158-159. (March 1952), 162- 169, esp. 167). .

480

Notes to Pages 222-226 ! 2. Alexander H. Stephens, A Constitu- regarded as having been acquired through tional: View of the Late War between the the annexation of Texas by joint resolution States, 2 vols. (Philadelphia, 1868-1870), I, in 1845, the partition of the Oregon country

542, by agreement with Great Britain in 1846, the

3. Charles A. and Mary R. Beard, The Rise cessions from Mexico by the treaty ending of American Civilization, 2 vols. (New York, the Mexican War in 1848, and the additional

1927), Il, 40, 42. territory acquired from the latter country by

4. Ulrich B. Phillips, The Course of the the Gadsden Purchase of 1853-1854. The South to Secession, ed. E. Merton Coulter conventional reckoning (which disregards

(New York, 1939), 152. , all the complex questions created by prior 5. William Blackstone, Commentaries on American claims) is given in U. S. Bureau of

the Laws of England, 4 vols. (Oxford, 1765- the Census, Historical Statistics of the

, 1769), I, 49. a United States, Colonial Times to 1957: A 6. Joint Resolution to Amend the Consti- Statistical Abstract Supplement (Washingtution, March 2, 1861, 12 U.S. Statutes at ton, D. C., 1960), 236.

, Large 251. It passed the House by a vote of 12. This was the form in which the pro133 to 65 on February 28, 1861, and the Sen- viso was adopted by the House on February

ate by a vote of 24 to 12 on the night of 15, 1847 (Congressional Globe, 29th Cong., March 3-4, 1861. Technically, the sitting of 2d sess., Feb. 15, 1847, 424-25). In its origiMarch 2, 1861, was still in progress in the nal form, as moved by David Wilmot of Senate, hence the date attached to the joint Pennsylvania on August 8, 1846, and resolution as officially published (Congres- _ adopted by the House the same day, it spoke sional Globe, 36th Cong., 2d sess., February only of ‘‘the acquisition of any territory from

28, March 2, 1861, 1285, 1403). | the Republic of Mexico” (ibid., 29th Cong., 7. First inaugural address, March 4, 1861, 1st sess., Aug. 8, 1846, 1217.

Collected Works of Abraham Lincoln, ed. 13. Ostend Manifesto (actually dated at ~ Roy P. Basler et al., 9 vols. (New Brunswick, Aix-la-Chapelle). October 18, 1854, The

N. J., 1953-1955), IV, 270. Ostend Conference etc. (House Executive

, 8. Ohio on May 13, 1861, Maryland on Documents), 33d Cong., 2d sess., X, no. 93), January 10, 1862, Illinois on February 14, 131. Though Secretary of State William L. 1862 (Herman V. Ames, Proposed Amend- Marcy was forced by public opinion to repu-

ments to the Constitution of the United diate the manifesto, James Buchanan was States during the First Century of Its History, helped to the presidency in 1857 by the fact Annual Report, American Historical Associ- that his signature was on it.

ation, 1896, 2 vols. [Washington, D. C., 14. Collected Works of Lincoln, ed.

1897], II, 363. - Basler et al., IV, 154, 155, 172. It should be

9. Of the 3,953,760 slaves in the United noted that Stephen A. Douglas in his third States in 1860, 2,174,996 were held in the debate with Lincoln, at Jonesboro, Illinois, nine states of Kentucky, Tennessee, Florida, on September 15, 1858, declared in forth-

Alabama, Mississippi, Missouri, Arkansas, right language that the doctrine of popular Louisiana, and Texas (U.S., Ninth Census sovereignty ought to apply “when we get [1870] I, The Statistics of the Population Cuba” and “when it becomes necessary to [Washington, D.C., 1872], 3-8 [a corrected acquire any portion of Mexico or Canada, or recompilation of previous census figures]. of this continent or the adjoining islands”’ 10. U.S. Constitution, Art. I, sec. 8, clause (ibid., III, 115). The word was “‘when,”’ not

3. —_ if.”

“11. The area of the so-called continental 15. Lincoln to Seward, February 1, 1861, United States (exclusive of Alaska as well as ibid., IV, 183.

of Hawaii) is officially put at 3,022,387 16. At the beginning of 1845 the United square miles. It attained this size in 1854. States comprised approximately 1,788,000 More than two-fifths of this area, that is, square miles (exclusive of its claims in the 1,234,381 square miles, is conventionally Oregon country). Of this total, 945,000

481

Notes to Pages 226-227 - square miles were within the boundaries of listed as a state, though it was not admitted

the 26 full-fledged states of the Union: until January 29, 1861, and statistics were another 329,000 square miles belonged to presented for the territories of Colorado, organized territories; and the remaining Dakota, and Nevada, though these were 514,000 square miles were without organ- organized only in February and March 1861.

ized civil governments. At the end of 1854 19. Census figures for the six states

the total area had increased to approxi- admitted from 1846 to 1861 inclusive (Iowa, mately 3,022,000 square miles, of which Wisconsin, California, Minnesota, Oregon, 1,542,000 lay within the 31 states that were and Kansas) and for the seven organized now members of the Union (Florida, Texas, territories enumerated in the census of 1860 Iowa, Wisconsin, and California having (Colorado, Dakota, Nebraska, Nevada, New been admitted during the decade); another Mexico, Utah, and Washington) showed an 1,410,000 square miles belonged to organ- aggregate of 2,305,096 white persons, 7,641 _ized territories; and only 70,000 square free persons of color, and 46 slaves; making miles remained in the unorganized Indian a total (including also “civilized Indians”’ Territory. Boundaries are shown in Charles and ‘‘Asiatics’’) of 2,382,677 persons O. Paullin and John K. Wright, Atlas of the (Eighth Census [1860], Population, 598Historical Geography of the United States 599). Ironically enough, the aborigines in (Washington, D. C., 1932), plates 63A and the Indian Territory held in slavery almost 63B (for the situation in 1845), plates 63B, as many Negroes as were to be found, slave

64A, and 64C (for 1854). or free, in the entire area just specified 17. In his first inaugural, Lincoln re- (Eighth Census [1860], Preliminary Report, iterated a statement he had made earlier in 136. This special tabulation for the Indian his debates with Douglas: ‘I have no pur- Territory (not incorporated in the regular pose, directly or indirectly, to interfere with census tables) showed 65,680 Indians, 1,988 the institution of slavery in the States where white persons, 404 free colored persons, it exists. I believe I have no lawful right to and 7,369 slaves.

do so, and I have no inclination to do so” 20. James G. Blaine, Twenty Years of (Collected Works of Lincoln, ed. Basler et Congress, 2 vols. (Norwich, Conn., 1884), I,

al., IV, 263). The statement was originally 272, quoting an unnamed “representative

made in the debate at Ottawa, Illinois, from the South.”’

August 21, 1858 (ibid., III, 16; see also the 21. James G. Randall, The Civil War and discussion of the proposed constitutional Reconstruction (Boston, 1937), 114-115. Ina amendment of March 2, 1861, above, nn. later work, Randall described the issue of

6-8). slavery in the territories, when debated by 18. U.S. Eighth Census (1860), Prelimi- Lincoln and Douglas in 1858, as “‘a talking

mary Report on the Eighth Census, 1860 point rather than a matter for governmental (Washington, D.C., 1862), 131; confirmed in action, a campaign appeal rather than a the final report, Population of the United guide for legislation’? (Lincoln the PresiStates in 1860 (Washington, D.C. 1864), dent, 4 vols. [New York, 1945-1955] I, 125). 598-599. Slaves were recorded in only three 22. As I have written elsewhere: “The territories: fifteen in Nebraska, twenty-nine fact that the controversy of 1846-1860 in Utah, and two in Kansas; a total of forty- turned on the extension of slavery to the six. Certain unofficial preliminary reports territories (and, to a lesser extent, on the gave slightly higher figures: ten slaves in fugitive-slave law) showed that antislavery Nebraska, twenty-nine in Utah, twenty-four leaders, far from flouting the Constitution, in New Mexico, and none in Kansas; a total were showing it a punctilious respect. Had of sixty-three (American Annual Cyclopae- they been disposed, as their opponents dia, 1861 [New York, 1862], 696). It should alleged, to ride roughshod over constitu-

be noted that the census figures for 1860 tional limitations, they would hardly have were tabulated in terms of civil divisions as bothered with the question of the territories they existed early in 1861. Thus Kansas was or the question of fugitive slaves’ (Arthur

482 Notes to Pages 227-229

Bestor, “State Sovereignty and Slavery,” 448,987 in Virginia. In 1860 there were Journal of the Ulinois State Historical Soci- 871,711 slaves in the two Gulf states, as_

ety, 44 [Summer 1961], 127). against only 490,865 in Virginia. During the

23. The failure of the Republicans to same twenty years there was a net increase mount a frontal attack upon slavery in the of 365,911 in the white population of the

slaveholding states seemed to the Beards two Gulf states, and a net increase of sufficient reason for treating the attack 306,331 in the white population of Virginia,

, upon slavery as hardly more than a sham U.S., Ninth Census, (1870), I, Population,

battle. Secession, they argued, was the 3-8. |

southern planters’ “response to the victory 31. Last of the eight resolutions introof a tariff and homestead party that pro- duced in the Senate by Henry Clay, Conposed nothing more dangerous to slavery gressional Globe, 31st Cong., ist sess. Jan. itself than the mere exclusion of the institu- 29, 1850, 246. According to Clay himself, tion from the territories” (Beard, Rise of the resolution proposed no new legislation, American Civilization, II, 37, see also but merely asserted ‘‘a truth, established bv

39-40.) the highest authority of law in this 24. First debate with Douglas, Ottawa, country.’ He expected, he said ‘‘one univer-

Illinois, August 21, 1858, Collected Works sal acquiescence’ (ibid.) of Lincoln, ed. Basler et al., II, 18 (italics of 32. 9 Wheaton 1 (1824).

the original not reproduced here). 33. Champion v. Ames, 188 U.S. 321 | 25. “Declaration of the Immediate Causes (1903).

Which Induce and Justify the Secession of 34. U.S. Constitution, Art. IV, sec. 2, South Carolina from the Federal Union,” clause 3. December 24, 1860, Journal of the Conven- 35. Prigg v. Pennsylvania, 16 Peters 539 tion of the People of South Carolina, Held (1842). in 1860, 1861 and 1862. (Columbia, S. C., 36. South Carolina, ‘‘Declaration,’’ Dec.

1862), 465. 24, 1860, Journal of the Convention, 464. 26. Collected Works of Lincoln, ed Basler 37. In 1844, to be sure, the Liberty party et al., III, 18. solemnly repudiated this specific obliga27. First inaugural, March 4, 1861, ibid., tion: “We hereby give it to be distinctly

IV, 270; see also above, nn. 6-8. understood, by this nation and the world,

28. In the U.S. Constitution the only ref- that, as abolitionists, ... we owe it to the erence to the slave trade is in a provision Sovereign Ruler of the Universe, as a proof suspending until 1808 the power of Con- of our allegiance to Him, in all our civil gress to prohibit ‘‘the Migration or Importa- relations and offices, whether as private cittion” of slaves (Art. I, sec. 9, clause 1). The izens, or as public functionaries sworn to

power itself derives from the commerce support the Constitution of the United clause (Art. I, sec. 8, clause 3), and Congress States, to regard and to treat the [fugitive

is not required to use it. By contrast, the slave clause] of that instrument ... as Confederate Constitution not only utterly null and void, and consequently as announced that the foreign slave trade ‘‘is forming no part of the Constitution of the

hereby forbidden,’ but also went on to United States, whenever we are called

require its Congress to pass the necessary upon, or sworn, to support it” (National enforcement laws. (Constitution of the Con- Party Platforms, 1840-1956, ed. Kirk H. federate States, Art. I, sec. 9, clause 1; text Porter and Donald B. Johnson [Urbana, II1.,

in Jefferson Davis, The Rise and Fall of the 1956 ], 8). Lincoln, on the other hand, Confederate Government, 2 vols. (New solemnly reminded the nation in his first

York, 1881), I, 657). inaugural that public officials ‘‘swear their 29. U.S. Constitution, Art. I, sec. 8, support to the whole Constitution — to this

clause 3. provision as much as to any other’ (Col30. In 1840 there were 448,743 slaves in lected Works of Lincoln, ed. Basler et al., IV,

Alabama and Mississippi, as against 263).

483

Notes to Pages 229-238

38. U.S. Constitution, Art. IV, sec. 3, 49. Ibid., XXXII, 343. This was the vote

clause 2. on July 13, 1787, adopting the Ordinance of 39. Congressional Globe, 36th Cong., 2d 1787 with its antislavery article; only one

sess., Dec. 18, 1860, 114. member voted against the ordinance. There

40. National Party Platforms, ed. Porter is no evidence of opposition to the antislaand Johnson, 27. This argument from the very article itself, which was added as an due-process clause went back at least as far amendment in the course of the preceding as the Liberty party platform of 1844 (ibid., debate. 5). It was reiterated in every national plat- 50. Douglas, “Federal and Local Authorform of an antislavery party thereafter: in ity,” 526. 1848 by the Free Soil party, in 1852 by the 51. Journals of the Continental Congress, Free Democrats, and in 1856 and 1860 by ed. Ford et al., XXXII, 343. As if anticithe Republicans (ibid., 13, 18, 27, 32). pating Douglas’s contention that the earlier 41. Ibid., 13. Repeated in the Free Demo- ordinance was ‘‘irrepealable,” the Congress

cratic platform of 1852 (ibid., 18). that had adopted it not only repealed it, but 42. Stephen A. Douglas, “The Dividing declared it “null and void.”

526. 147.

Line between Federal and Local Authority: 34. These terms were suggested, and Popular Sovereignty in the Territories,” their propriety defended, in my article,

Harper’s Magazine, 19 (1859), 519-537, esp. State Sovereignty and Slavery,” 128-31,

43. Ibid., 520-521. , 53. Congressional Globe, 29th Cong., 2d

44. Douglas insisted that this clause sess., Jan. 15, 1847, Appendix, 246. referred ‘exclusively to property in contra- 34. Speech in Boston, reprinted man distinction to persons and communities” appendix to Stephens, Constitutional View,

(ibid., 528). I, 625-647, esp. 625.

45. He likewise ignored all subsequent enactments of the same sort, save to register 20. The Reconstruction of Federal

agreement with the dictum of the Supreme Judicial Power, 1863-1875 | Court, announced in the Dred Scott opinion, that the Missouri Compromise had WILLIAM M. WIECEK always been unconstitutional (ibid., 530).

46. Ibid., 525-526. 1. Only the original jurisdiction of the

47. Report to Congress, March 1, 1784, Supreme Court, accounting for a small porand revised report, March 22, 1784, Julian tion of the Court’s business, is beyond the P. Boyd et al., eds., The Papers of Thomas power of Congress to enlarge or contract Jefferson, 16 vols. (Princeton, N.J., 1950- ), (U.S. Const. Art. Ill, sec. 2).

VI, 604, 608. 2. The president can veto a jurisdictional A8. Douglas, ‘‘Federal and Local Author- statute, or he can influence its contours

ity,’ 526. The antislavery provision came to before Congress passes it. a vote in the Continental Congress on April 3. Among historians who have argued for

19, 1784, under a rule requiring the favor- judicial impotence during Reconstruction, | able vote of the majority of the states for see James F. Rhodes, History of the United adoption. Six states voted in favor of the States from the Compromise of 1850, 9 vols, provision, only three against it. One state (New York, 1900-1928), VI, 11, 12, 96; Wilwas divided. Another state could not be liam A. Dunning, Essays on the Civil War counted, because a quorum of the delega- and Reconstruction and Related Topics tion was not present, but the single delegate (New York, 1898), 121-122; William A. Dun-

on the floor voted ‘‘aye” (Journals of the ning, Reconstruction, Political and EcoContinental Congress, ed. Worthington C. nomic 1865-1877 (New York, 1907), chap.

Ford et al., 34 vols, [Washington, D.C., 16; James G. Randall, The Civil War and

1904-1937], XXVI, 247). Reconstruction (Boston, 1937), 802-806;

484

Notes to Pages 238-239

Claude Bowers, The Tragic Era: The Revolu- Fourteenth Amendment, the “Conspiracy tion after Lincoln (Cambridge, Mass., 1929), Theory” and American Constitutionalism 153, 171, 215, to cite only some of the more (Madison, 1968).

influential. Specialists in constitutional 5. Reconstruction removal legislation has development fell into the same errors, led by been recently examined in depth by Stanley

Charles Warren, The Supreme Court in I. Kutler, Judicial Power and Reconstruction _United States History, 3 vols. (Boston, 1923), Politics (Chicago, 1968), chap. 8.

Ill, chaps. 27, 29, 30. See also, John W. 6. U.S. Const. Art. III, sec. 2 defines the Burgess, Reconstruction and the Constitu- parties that may claim the Supreme Court’s tion, 1866-1876 (New York, 1903), 197; Rob- original jurisdiction and lists the types of ert H. Jackson, The Struggle for Judicial subject matter which may form the grist for Supremacy: A Study of a Crisis in American federal court mills. Power Politics (New York, 1949), 326-327; 7. 1 Wheat. 304 (U.S. 1816). Fred Rodell, Nine Men: A Political History 8. Ch. 20, 1 Stat. 79.

of the Supreme Court from 1790 to 1955 9. The jurisdiction that federal courts

(New York, 1955), chap. 5; Walter F. have over suits because the parties are resiMurphy, Congress and the Court: A Case dents of different states is known as ‘‘diverStudy in the American Political Process sity jurisdiction”; the parties are said to be

(Chicago, 1962), 35-43. “diverse.” | 4. See Justice Robert Grier’s oral remarks 10. The “forum state” is the state in

made when the Court announced its post- which the court where suit was brought is ponement of the decision on the merits in located. the McCardle case, quoted in Louis B. Bou- 11. Removal jurisdiction was so narrowly din, Government by Judiciary (New York, restricted because the Judiciary Act of 1789 1932), II, 91-92; ex-President James was a compromise measure, trimmed down Buchanan to Nahum Capen, June 11, 1867, considerably from the original draft by in John B. Moore, ed., Works of James Oliver Ellsworth to placate opponents of the Buchanan, Comprising His Speeches, State lower federal courts. See Charles Warren, Papers and Private Correspondence (Phila- “New Light on the History of the Federal delphia, 1908-1911), XI, 446; Orville Brown- Judiciary Act of 1789,’ Harvard Law ing, diary entry of April 9, 1868, in Theodore Review, 37 (1924), 49, 53. The short-lived C. Pease and James G. Randall, eds., Diary of Judiciary Act of 1801 (ch. 4, 2 Stat. 89, Orville Hickman Browning (Springfield, II1., repealed by Act of 29 April, 1802, ch. 31, 2 1933), II, 191; ex-Attorney General Jeremiah Stat. 156) permitted removal of all federal

S. Black to Howell Cobb, April (?), 1868, question Cases. |

“The Correspondence of Robert Toombs, 12. Ch. 21, 3 Stat. 195, reenacted by Act of

Alexander H. Stephens, and Howell Cobb,” 3 March 1815, ch. 94, 3 Stat. 231.

American Historical Association Annual 13. Act of 2 March 1833, ch. 57, 4 Stat. Report, Il (1911), 694; Gideon Welles, diary 632. In 1855 proslavery senators supported entry of March 20, 1868, Howard K. Beale, the Toucey removal bill (so called from the ed., Diary of Gideon Welles, 3 vols. (New - name of its sponsor, the Doughface Isaac York, 1960), III, 320. Sée also Stephen J. Toucey of Connecticut) which would have Field, “Personal Reminiscences,” in Joseph _—«eXtended ‘similar protection to federal offi-

A. Sullivan, ed., California Alcalde (Oak- — cials enforcing the federal fugitive-slave land, 1950). Even historians sympathetic to laws. Antislavery senators killed the bill in the accomplishments of the Reconstruction the Senate, condemning the “centralizing” Congresses have misunderstood the effect of tendencies of removal legislation. See the McCardle repealer. See, e.g., Howard J. debates in Congressional Globe, 33d Cong., Graham, “Justice Field and the Fourteenth 2d sess. App. 210ff. Both groups reversed Amendment,” Yale Law Journal, 52 (1943), their positions within a decade, cui bono. 851, reprinted in Howard J. Graham, Every- _ 14. Cf. Felix Frankfurter, ‘Distribution of man’s Constitution: Historical Essays on the Judicial Power Between United States and

485

Notes to Pages 239-244

(1928), 499-508. | Stat. 44, | , 15. Ch. 81, 12 Stat. 755. Similar provi- 36. Debates are in Congressional Globe, State Courts,’ Cornell Law Quarterly, 13 35. Act of 27 March 1868, ch. 34, § 2, 15 sions were contained in the Civil Rights Act 40th Cong. 2d sess., 1868, pp. 1860, 2096.

| _ (U.S., 1869).

46. 1869).

of 1866, ch. 90, §§ 3, 10, 13 Stat. 507. 37. Ex parte McCardle, 7 Wall. 506, 515 16. Act of 11 May 1866, ch. 80, 14 Stat. 38. Ex ” ate Yerger, 8 Wall. 85 (US. 17. Ch. 99, 16 Stat. 433, rp. by Act of 8 39. Act of 3 March 1885, ch. 253, 23 Stat.

Feb. 1894, ch. 25, 28 Stat. 36. For evidence of 437. ,

Congress’s continuing concern for the safety 40. See, e.g., “Abuses of the Writ of of federal officers in southern state courts, Habeas Corpus,” American Bar Association see debates in Congressional Globe, 39th Reports, 6 (1883), 243; “Federal Abuses of Cong., 2d sess., 1867, 729; 41st Cong., 3d the Writ of Habeas Corpus,”’ American Law

sess., 1871, 1633ff. Review, 25 (1891), 149.

18. Ch. 288, 14 Stat. 306. : 41. 117 U.S. 241 (1886). 19. 3 Cranch 267 (U.S., 1806). 42. 140U.S. 278 (1891).

20. For a discussion of the importance of 43. Moore v. Dempsey, 261 U.S. 86 , this innovation, see Note, “Separation of (1923). See Frank v. Mangum, 237 U.S. 309 Causes in Removal Proceedings,’’ Harvard (1915).

Law Review, 41 (1928), 1048. 44. Waley v. Johnson, 316 U.S. 101 21. Act of 2 March 1867, ch. 196, 14 Stat. (1942); Brown v. Allen, 345 U.S. 946 (1953);

558. | Fay v. Noia, 372 U.S. 391 (1963); Townsend 22. See Congressional Globe, 39th Cong., v. Sain, 372 U.S. 293 (1963).

2d sess., 1867, p. 1865. 45. Act of 2 Sept. 1789, ch. 12, 1 Stat. 65; 23. See Anthony Amsterdam, “Criminal Act of 8 May 1792, ch. 37, 1 Stat. 279; Act of

| Prosecutions Affecting Federally Guaran- 3 March 1817, ch. 45, secs. 1-4, 3 Stat. 366; teed Civil Rights: Federal Removal and Act of 19 April 1816, ch. 40, 3 Stat. 203.

Habeas Corpus Jurisdiction to Abort State 46. See discussion in H.R. Rep. 730, 25 Court Trial,”: University of Pennsylvania Cong. 2 sess. ser. 335.

Law Review, 113 (1965), 793, 818. 47. Act of 24 Feb. 1855, ch. 122, 10 Stat.

24. Felix Frankfurter and James M. 612. ,

Landis, The Business of the Supreme Court: 48. See Congressional Globe, 34th Cong. A Study in the Federal Judicial System (New 1st sess., 1856, pp. 608-610, 970-972,

York, 1927), 65. | 1241-1243. | 25. 18 Wall. 553 (U.S. 1874). 49. James D. Richardson, comp., A Com26. Jurisdiction and Removal Act of 1875, pilation of the Messages and Papers of the

ch. 137, 18 Stat. 470. Presidents, 11 vols., (New York, 1911), VII,

27. 3 Cong. Rec. 2168 (1875). 3252,

28. U.S. Const., Art. I, sec. 9, clause 2. 50. See Congressional Globe, 37th Cong.,

29. Dallin H. Oaks, “The ‘Original’ Writ 3d sess., 1863, 307-309, 426; Act of 12 March of Habeas Corpus in the Supreme Court,” 1863, ch. 120, 12 Stat. 820.

Supreme Court Review, 1962, 154. 51. The reporting of Gordon v. United

30. See above, n. 8. States compounded the confusion. The offi31. Congressional Globe, 39th ‘Cong. 1st cial report, 2 Wall. 561, is not Chase’s opinsess., 1866, p. 135. ion, but rather a note drafted by the reporter, 32. Congressional Globe, 39th Cong. 1st John A. Wallace, which was _ inaccurate.

sess., 1866, p. 4151. Chase’s opinion appears only in 17 L.Ed. 33. Ex parte McCardle, 6 Wall. 318 (U.S., 921. A draft opinion in the case written by

1868). , Chief Justice Taney just before his death was

struction Politics, 99-100. App.

34. See Kutler, Judicial Power and Recon- found and reprinted in 1886, 117 U.S. 697,

486

Notes to Pages 244-247

52. Act of 17 March 1866, ch. 19, 14 Stat. Nineteenth-Century America,” Journal of 9; Congressional Globe, 39th Cong., 1st sess., Interdisciplinary History, 3 (1972), 135-151.

1866, pp. 770-777. 2. Willard Hurst, The Legitimacy of the 53. Ch. 19, 2 Stat. 19. On the subject of Business Corporation (Charlottesville,

bankruptcy, see generally, Charles Warren, 1970), 13-30; Paul Gates, History of Public Bankruptcy in the United States (Cam- Land Law Development (Washingon, 1968),

bridge, Mass., 1935). : 341-386; John Ezell, Fortune’s Merry Wheel:

54. Act of 19 Dec. 1803, ch. 6, 2 Stat. 248. The Lottery in America (Cambridge, Mass., 55. Act of 19 Aug. 1841, ch. 9, 5 Stat. 440. 1960); Harry N. Scheiber, ‘Property Law, Act of 13 March 1843, ch. 82, 5 Stat. 614. Expropriation, and Resource Allocation by

56. Act of 2 March 1867, ch. 176, 14 Stat. Government: The United States, 1789-

017. - 1910,” Journal of Economic History, 33 57. Frankfurter and Landis, The Business (1973), 232-251; John Cadman, The Corpora-

of the Supreme Court, 63. tion in New Jersey: Business and Politics, 58. “Some New Aspects of the Right of 1789-1875 (Cambridge, Mass., 1949), 56-61.

Trial by Jury,” American Law Register, n.s. 3. Carter Goodrich, “Local Planning of 16 (1877) 705. See also, James Maclachlan, — Internal Improvements,” Political Science

Handbook of the Law of Bankruptcy (St. Quarterly, 66 (1951), 411-445.

Paul, 1956), 10; Leonard A. Jones, 4, Harry Pierce, The Railroads of New

“Receivers of Railways,” Southern Law York: A Study of Government Aid, 1826Review, 4 (1879), 18, 20; “Suggestions of 1875 (Cambridge, Mass., 1953), 84; FredAmendments to the Bankruptcy Act,” Amer- erick Merk, “Eastern Antecedents of the cian Law Register, n.s. 12 (1873), 737. Grangers,”’ Agricultural History, 23 (1949), , 59. See American Law Review, 1 (1867), 1-8; Lee Benson, Merchants, Farmers, and 206. “The Bankrupt Law, Its Provisions and Railroads (Cambridge, Mass., 1955); Harold Objects,’ Central Law Journal, 6 (1878), 273; D. Woodman, “‘Chicago Businessmen and Central Law Journal, 13 (1881), 221; “A Per- the Granger Laws,” Agricultural History, 23

manent Bankrupt Law,” Western Jurist, 6 (1962), 16-24; Dale E. Treleven, ‘‘Railroads, , (1872), 512; “Abuses of the Bankrupt Law,” Elevators, and Grain Dealers: The Genesis of American Law Review, 7 (1873), 641; “Sug- Anti-Monopolism in Milwaukee,’ Wiscongestions of Amendments to the Bankruptcy sin Magazine of History, 52 (1969), 205-222;

Act,” American Law Register, 12 (1873), George Miller, The Railroads and the

737. : Granger Laws (Madison, 1971); Charles Fair60. Messages and Papers of the Presi- man, Reconstruction and Reunion, 1864-

dents, VII, 250; Act of 7 June 1878, ch. 160, 1888, Oliver Wendell Holmes Devise History

20 Stat. 99. of the Supreme Court, vol. VI, pt. 1, (New 61. Patricia Acheson, The Supreme Court: York, 1971), 934-1010.

_ America’s Judicial Heritage (New York, 5. Stephen J. Field, “Centenary of the

1961), 127. Supreme Court of the United States,” Ameri-

21. Justice Field and the Jurisprudence can Law Review, 24 (1890), 365.

of Government-Business Relations: 6. Stanley I. Kutler, Judicial Power and Some Parameters of Laissez Faire Reconstruction Politics (Chicago, 1968),

Constitutionalism, 1863-1897 “ EX Parte Wall, 107 U.S. 265 (1883) at CHARLES W. MCCURDY | 302; Providence Tool Co. v. Norris, 2 Wall. 45 (1865) at 55-56; Mugler v. Kansas, 123 1. Robert A. Lively, ‘“The American Sys- U.S. 623 (1887) at 678.

tem: A Review Article,’ Business History 8. Edward S. Corwin, “The Supreme Review, 29 (1955), 93. See also Harry N. Court and the Fourteenth Amendment,” Scheiber, ‘Government and the Economy: Michigan Law Review, 7 (1909), 653.

Studies of the Commonwealth Policy in 9g. Arthur S. Miller, The Supreme Court

487

Notes to Pages 247-249

end American Capitalism (New York, 1968), 15. Barbier v. Connolly, 113 U.S. 27 50; Robert McCloskey, American Conserva- (1885) at 31.

tism in the Age of Enterprise (Cambridge, 16. Edward S. Corwin, ‘‘The Basic DocMass., 1951), 85, 74. See also Wallace Men- trine of American Constitutional Law,”’ delson, ‘‘Mr. Justice Field and Laissez- Michigan Law Review, 12 (1914), 275; Faire,” Virginia Law Review, 36 (1950), Charles G. Haines, The Revival of Natural 45-58; Howard J. Graham, Everyman’s Con- Law Concepts (Cambridge, Mass., 1930),

stitution (Madison, 1968), 98-151; Carl 154-165. Swisher, Stephen J. Field: Craftsman of the 17. Scheiber, ‘“The Road to Munn,” 360.

Law (Washington, 1930), 240-245. 18. Boom Co. v. Patterson, 98 U.S. 403

10. Charles R. Burdick, “The Origin of the (1878) at 406.

Peculiar Duties of Public Service Corpora- 19. West River Bridge v. Dix, 6 How. 507

tions,’ Columbia Law Review, 11 (1911), (1848) at 546.

514-531, 616-638, 743-764; Edwin Merrick 20. Olcott v. Supervisors of Fond Du Lac Dodd, American Business Corporations County, 16 Wall. 667 (1873) at 694. until 1860 (Cambridge, Mass., 1954), 158- 21. Boom Co. v. Patterson, 98 U.S. 403

163; Leonard Levy, The Law of the Common- (1878) at 406. oe .

wealth and Chief Justice Shaw (Cambridge, 22. See Philip Nichols, Jr., “The Meaning Mass., 1957), 258; Harry N. Scheiber, ‘“The of Public Use in the Law of Eminent Road to Munn: Eminent Domain and the Domain,” Boston University Law Review, 20

Concept of Public Purpose in the State (1940), 615-624.

Courts,” in Law in American History, ed. 23. Pumpelly v. Green Bay Co., 13 Wall.

Donald Fleming and Bernard Bailyn (Bos- 166 (1872). ,

ton, 1971), 342-402. 24. Willard Hurst, Law and Economic

11. Charles Fairman, ‘‘What Makes a Growth (Cambridge, Mass., 1965), 182. See, Great Justice? Justice Bradley and the generally, Hurst, Law and the Conditions of Supreme Court, 1870-1892,’ Boston Univer- Freedom in the Nineteenth-Century United

sity Law Review, 30 (1950), 67. States (Madison, 1956), 20-30; Morton Hor-

12. C. Peter Magrath, Yazoo: The Case of witz, “The Transformation in the Concep-

Fletcher v. Peck (Providence, 1966), 109. tion of Property in American Law, 13. McCloskey, American Conservatism, 1780-1860,” University of Chicago Law 103; Mendelson, “Mr. Justice Field and Lais- Review, 40 (1973), 248-290, also reprinted in

sez-Faire,” 55. abridged form in this volume; Lawrence

14, Slaughterhouse Cases, 16 Wall. 36 Friedman, A History of American Law (New (1873) at 101, 90. See Howard M. Jones, The York, 1973), 202-227, 261-264. , Pursuit of Happiness (Ithaca, 1953), 12; 25. Joseph Cormack, ‘“‘Legal Concepts in Richard Hofstadter, ‘‘William Leggett: Cases of Eminent Domain,” Yale Law JourSpokesman of Jacksonian Democracy,” nal, 41 (1931), 221-261; Scheiber, ‘“‘The Road Political Science Quarterly, 58 (1943), 581- to Munn,” 362-73. 594; Louis Hartz, Economic Policy and Dem- 26. Monongahela Navigation Co. v. ocratic Thought: Pennsylvania, 1776-1860 Coons, 6 Watts & Serg. 101 (Penn. 1843) at (Cambridge, Mass., 1948), 70-72; William E. 114; see Stanley I. Kutler, “John Bannister

Nelson, ‘‘The Impact of the Antislavery Gibson: Judicial Restraint and the ‘Positive Movement upon Styles of Judicial Reason- State,’’’ Journal of Public Law, 14 (1965), ing in Nineteenth-Century America,” Har- 181-197. vard Law Review, 87 (1974), 513-566. See 27. Theodore Sedgwick, A Treatise on the also David Dudley Field’s laudatory 1841 Rules which Govern the Interpretation and review of Leggett’s Political Writings, in Application of Statutory and Constitutional Speeches, Arguments, and Miscellaneous Law (New York, 1857), 525. On the impact of Papers of David Dudley Field, ed. A.P. Spra- Pumpelly, see Cormack, ‘‘Legal Concepts in gue, 2 vols., (New York, 1884), II, 209-236. Cases of Eminent Domain,” 233-261.

488

Notes to Pages 249-251

28. Pumpelly v. Green Bay Co., 13 Wall. 43. Corwin, ‘The Supreme Court and the

166 (1872) at 177-178. Fourteenth Amendment,” 654.

29. Jack B. Scroggs, ‘“‘Carpetbagger Con- 44. Messages and Papers of the Presistitutional Reform in the South-Atlantic dents, 1789-1897, ed. James D. Richardson, States, 1867-1868,” Journal of Southern His- 10 vols (Washington, 1897), VI, 30; see Eric

tory, 28 (1961), 493. Foner, Free Soil, Free Labor, Free Men: The 30. Carter Goodrich, ‘‘Public Aid to Ideology of the Republican Party before the

Railroads in the Reconstruction South,” Civil War (New York, 1970), 11-39. Political Science Quarterly, 71 (1956), 45. Dent v. West Virginia, 112 U.S. 114

407-442. (1889) at 121. 31. Mitchell Franklin, “The Foundation 46. Slaughterhouse Cases, 16 Wall. 36

and Meaning of the Slaughter-House Cases,” (1873) at 96; Bartmeyer v. Iowa, 18 Wall. 129

Tulane Law Review, 18 (1943), 14. (1873) at 139.

32. Durbridge v. The Slaughter-House 47. Yick Wo v. Hopkins, 118 U.S. 356

Co., 27 La. Ann. 676 (1875). (1886); see Howard J. Graham, Everyman’s

33. Slaughterhouse Cases, 16 Wall. 36 Constitution, 552-584. On the role of counsel (1873) at 87, 89; see also Charles Fairman, in bringing Field’s Fourteenth Amendment Mr. Justice Miller and the Supreme Court construction to fruition, see Walton Hamil-

(Cambridge, Mass., 1939), 180. ton, “The Path of Due Process of Law,” in 34. Slaughterhouse Cases, 16 Wall. 36 | The Constitution Reconsidered, ed. Conyers

(1873) at 78. Read (New York, 1938), 167-190; Benjamin 35. Ibid. at 88. Twiss, Lawyers and the Constitution (Prin-

36. Ibid. ceton, 1942), 42-62. 37. Thomas Durant, “Brief of Counsel in 48. Bartemeyer v. Iowa, 18 Wall. 129

Error, Paul Estaban and Others v. The State (1873) at 141; see also Missouri Pacific Ry.

of Louisiana,” 8-9. Co. v. Humes, 115 U.S. 512 (1885) at 520.

38. Slaughterhouse Cases, 16 Wall. 36 49. Bartemeyer v. Iowa, 18 Wall. 129

(1873) at 88. Field was not innovating here. (1873) at 138. In the leading case of Boston & Lowell R.R. 50. Dent v. West Virginia, 112 U.S. 114 Co. v. Salem & Lowell R.R. Co., 2 Gray 1 (1889); Crowley v. Christensen, 137 U.S. 86 (Mass. 1854), Chief Justice Shaw had empha- (1890); Minneapolis Ry. Co. v. Beckwith, sized the necessity for public consideration 129 U.S. 26 (1888); New York and New Eng— governmental control of rates and ser- land Ry. Co. v. Bristol, 151 U.S. 556 (1894). vices — before exclusive franchises might be 51. Soon Hing v. Crowley, 113 U.S. 703 granted. See Levy, The Law of the Common- (1885) at 710; Missouri Pacific Ry. Co. v. wealth and Chief Justice Shaw, 124-126. Mackey, 127 U.S. 205 (1887). Field was so 39. Slaughterhouse Cases, 16 Wall. 36 antagonistic to the heavy-handed fellow-ser(1873) at 88; see also Field J. dissenting in vant rule that he was simultaneously making

Munn v. Illinois, 94 U.S. 113 (1877) at doctrinal innovations in private law

148-149. , designed to enable injured workers to 40. See the sources cited above, nn. 10, recover damages from intractable railroad

18-20. corporations. See Chicago, Milwaukee & St. 41. Slaughterhouse Cases, 16 Wall. 36 Paul Ry. Co. v. Ross, 112 U.S. 377 (1884). See (1873) at 90. See also New Orleans Gas Co. v. also his vigorous lone dissent in Baltimore & Louisiana Light Co., 115 U.S. 650 (1885) at Ohio Ry. Co. v. Baugh, 149 U.S. 368 (1893), 658, where Justice Harlan, speaking for the where Justice Brewer persuaded the Court to

Court, makes the identical distinction abandon Ross and make the fellow-servant between “ordinary trades” and public utili- doctrine applicable throughout the nation.

ties to determine when monopoly grants 52. Soon Hing v. Crowley, 113 U.S. 703 might subsequently be revoked by state | (1885) at 710.

legislatures. , 53. Barbier v. Connolly, 113 U.S. 27 42. Slaughterhouse Cases, 16 Wall. 36 (1885) at 31; see also Pacific Ry. Co. v.

(1873) at 88 (italics added). Humes, 115 U.S. 512 (1885) at 523.

489 Notes to Pages 251-252

54. Field to Matthew Deady, October 29, 61. Barbier v. Connolly, 113 U.S. 27 1884, Field Papers, Oregon Historical Soci- (1885) at 31. ety. Field told Judge Deady that he was fed 62. Baker v. Boston, 12 Pick. 183 (Mass. up with ‘‘the multifariousness of lying from 1831) at 193; see Levy, Law of the Commonthe inarticulate [Henry Ward] Beecher to wealth and Chief Justice Shaw, 245-254. See Pecksniff [George William] Curtis. The Phar- also Field’s opinion in Hagar v. Reclamation

isees of old are the loudest proclaimers of District, 111 U.S. 701 (1884). their holier-than-thou virtues. The wealthy 63. In Re Tiburcio Parrot, 1 Fed. Rep. 481 and the comfortable wonder as before at the (C.C.D. California 1880); Powell v. Pennsylgrumblings of the needy and are measuring vania, 127 U.S. 678 (1888). Field’s circuit

the eye of the needle, which the camels of opinions on legislative discrimination - old had some difficulty in squeezing against California’s Chinese population are through [Mark 10:17], to see what chance examined in Swisher, Stephen J. Field, 205there is for the passage. They are not so con- 239; Graham, Everyman’s Constitution, _fident of the ‘good time’ hereafter as they are 142-149. of the condition of their bank account now. I 64. Soon Hing v. Crowley, 113 U.S. 703 am on the other side — and would giventhe | (1885) at 710; Barbier v. Connolly, 113 U.S. under fellow a show in this life. It is a shame 27 (1885) at 32.

to put him off to the next world.” 65. Slaughterhouse Cases, 16 Wall. 36

55. Lochner v. New York, 198 U.S. 45 (1873) at 88-89; see also the sources cited (1905). above, notes 20-21. ~ 56. Corwin, ‘“‘The Supreme Court and the 66. Barbier v. Connolly, 113 U.S. 27

Fourteenth Amendment,” 653. (1885) at 32. 57. Roscoe Pound, ‘‘Liberty of Contract,”’ 67. Ibid.

Yale Law Journal, 18 (1909), 470. 68. Pierce, The Railroads of New York,

58. Pacific Ry. Co. v. Humes, 115 U.S. 512 82-83. ,

. Pum v. Green Bay Coa., all. ,

cae ae C Bav Co. 13 Wall 69. See the sources cited above, note 4.

166 (1872) at 181. cf. Transportation Co. v. 70. See, for example, James A. Garfield,

Chicago, 99 U.S. 635 (1878). _ “The Future of the Republic: Its Dangers and 60. Davidson v. New Orleans, 96 U.S. 97 Hopes,’ Legal Gazette, 5 (1873), 408.

(1877) at 107. Field’s position on takings and 71. Gene Gressley, West by East: The the police power is best illustrated in cases American West in the Gilded Age (Provo, _ involving governmental control of navigable 1972), 12. See also Leslie Decker, “The Great waters. In Weber v. Harbor Commissioners, Speculation: An Interpretation of Mid-Conti18 Wall. 57 (1873), he refused to award com- nent Pioneering,” in The Frontier in Ameripensation to a wharf owner whose landing can Development, ed. David M. Ellis (Ithaca, had been summarily destroyed as an impedi- 1969), 357-380; Allan Bogue, “Some Dimenment to commerce. In Monongahela Naviga- sions of the Kansas Search for Capital, 1865-

tion Co. v. United States, 148 U.S. 312 1893,” in The Frontier Challenge: Responses (1893), however, he joined a unanimous to the Trans-Mississippi West, ed. John G. Court that required government to compen- Clark (Lawrence, 1971), 203-234.

sate stockholders of a company whose lock 72. Reporter's note to Citizen’s Savings and dam were expropriated and incor- Assn. v. Topeka, 5 Fed. Cas. 737 (No. 2,734) porated into a larger publicly owned system (C.C.D. Kansas 1874) at 738.

of river improvements. On the one hand, 73. George Miller, The Railroads and the property was destroyed as detrimental, on Granger Laws, 140-160; Robert S. Hunt, Law

the other, government took it for the public’s and Locomotives: The Impact of the positive use. See also Ernst Freund, The Railroad on Wisconsin Law in the NinePolice Power: Constitutional Rights and teenth Century (Madison, 1958), 85-87; Public Policy (Chicago, 1904), 546; Joseph Lewis Mills, “The Public Purpose Doctrine

Sax, “Takings and the Police Power,’ Yale in Wisconsin, Part I,’ Wisconsin Law

Law Journal, 74 (1964), 36-76. Review, 1957, 52.

490

Notes to Pages 252-255

74. Isaac Redfield, A Practical Treatise on been authorized to borrow money, not to , the Law of Railways, 4th. ed., 2 vols. (Bos- loan it; Town of Caloma v. Eaves, 92 U.S. ton, 1869), II, 395-405; see Ellis Waldron, 484 (1876): Miller, Field, and Davis dis‘Sharpless v. Philadelphia: Jeremiah Black sented because the voters had authorized and the Parent Case on the Public Purpose of stock subscriptions in one road, while city Taxation,” Wisconsin Law Review, 1953, officials conveyed the municipal funds to

48-75. another; Town of Venice v. Murdock, 92

75. People ex. rel. Detroit and Howell R.R. U.S. 502 (1876): Miller, Field, and Davis disCo. v. Salem, 20 Mich. 452 (1870) at 477. See sented because bonds were issued without also Alan Jones, ‘“Thomas M. Cooley and the voter approval; County of Moultrie v. Rock-

Michigan Supreme Court, 1865-1885,”’ ingham Savings Bank, 92 U.S. 631 (1876):

American Journal of Legal History, 10 Miller, Field, and Davis dissented on the (1966), 97-121; Clyde E. Jacobs, Law Writers ground that the bonds had been issued after and the Courts (Berkeley, 1954), 106-121; a state constitutional amendment had prohi-

Scheiber, ‘““The Road to Munn,” 389. bited local aid; Marcy v. Township of 76. Whiting v. Sheboygan & Fond Du Lac Oswego, 92 U.S. 637 (1876): Miller, Field,

R.R. Co., 25 Wis. 167 (1870). and Davis dissented because the voters had 77. [Charles F. Adams], “Summary of been duped into authorizing a debt exceedEvents,” American Law Review, 5 (1870), ing the assessed valuation of the entire town, 148; see Mark De Wolfe Howe, Oliver Wen- despite a statute restricting local aid to one dell Holmes: The Proving Years, 1870-1882 percent of taxable property.

_ (Cambridge, Mass., 1963), 55-57. 88. Loan Association v. Topeka, 20 Wall.

78. Pine Grove Township v. Talcot, 19 655 (1874). ,

Wall. 666 (1874) at 667. On the development 89. Ibid. at 664. of “‘general jurisprudence,” or a federal com- 90. Ibid.

mon law, see Mitchell Wendell, Relations 91. See Miller’s reiteration of his Loan between State and Federal Courts (New Association position in Davidson v. New York, 1949), 113-180; Fairman, Reconstruc- Orleans, 96 U.S. 97 (1877) at 105. Not until

tion and Reunion, 935-940. 1896 was the public-purpose maxim incor79. Pine Grove Township v. Talcot, 19 porated into the due-process clause. In the

Wall. 666 (1874) at 676. interim, however, the Court continued to 80. Olcott v. Supervisors of Fond Du Lac invalidate local aid to manufacturing enterCounty, 16 Wall. 678 (1873) at 695-696. prises. See Parkersburg v. Brown, 106 U.S.

81. Ibid. at 694. 487 (1882); Cole v. La Grange, 113 U.S. 1

82. Charles Warren suggested that the (1885); Edward S. Corwin, ‘Judicial Review railroad-subsidy cases ‘‘probably had a more in Action,” University of Pennsylvania Law important effect upon the commercial devel- Review, 74 (May 1926), 669. opment of the country than any other of the 92. Loan Association v. Topeka, 20 Wall. Court’s extensions of National power’’ (The 655 (1874) at 664.

Supreme Court in United States History, 2d. 93. Township of Burlington v. Beasely, ed., 2 vols. [Boston, 1926], II, 528). See also 94 U.S. 310 (1877) at 313. John F. Dillon, The Law of Municipal Bonds 94. Fletcher v. Peck, 6 Cranch 87 (1810);

(St. Louis, 1876), 7. New Jersey v. Wilson, 7 Cranch 164 (1812); 83. Fairman, Mr. Justice Miller, 211-218. Dartmouth College v. Woodward, 4 Wheat. 84. Miller to William Ballinger, February 518 (1819).

3, 1874, quoted in ibid., 232. 95. Fletcher v. Peck, 6 Cranch 87 (1810)

85. White v. Vermont & Massachusetts at 130. R.R. Co., 20 How. 575 (1858) at 578. 96. Terrett v. Taylor, 9 Cranch 43 (1815) 86. Field, J., dissenting in Rogers v. Bur- at 50. lington, 3 Wall. 654 (1866) at 671. , 97. Levy, The Law of the Commonwealth

87. Ibid. Field, Grier, and Miller dis- and Chief Justice Shaw, 280. See also

sented on the ground that the city had only Magrath, Yazoo: The Case of Fletcher v.

491

Notes to Pages 255-257

Peck, 101-109; Francis N. Stites, Private Economy, Massachusetts, 1774-1861, 2d. Interest and Public Gain: The Dartmouth ed. (Cambridge, Mass., 1969), 109; Cadman, College Case (Amherst, 1972), 99-113. The Corporation in New Jersey, 56-61.

98. Dartmouth College v. Woodward, 4 109. Dodge v. Woolsey, 18 How. 331 Wheat. 518 (1819) at 712; Benjamin F. (1855) at 370. Wright, The Contract Clause of the Consti- 110. For the post-Civil War tax-reform tution (Cambridge, 1938), 58-61, 84-88. movement generally, see Clifton K. Yearly, 99. Charles River Bridge v. Warren The Money Machines: The Breakdown and

Bridge, 11 Pet. 420 (1837). Reform of Governmental and Party Finance

100. Ibid. at 552-553; see Stanley I. in the North, 1860-1920 (Albany, 1970),

Kutler, Privilege and Creative Destruction: 37-95. The Charles River Bridge Case (Philadel- 111. Leslie Decker, Railroads, Lands, and

phia, 1971). Politics: The Taxation of the Railroad Land 101. Wallace D. Farnham, “The Weak- Grants, 1864-1897 (Providence, 1964), 11.

ened Spring of Government: A Study in 112. New Jersey v. Wilson, 7 Cranch 164 Nineteenth-Century American History,” (1812). American Historical Review, 68 (1963), 666. 113. See, for example, Farrington v. TenSee also Willard Hurst, Law and Social nessee, 95 U.S. 679 (1878), where the major-

Process in United States History (Ann ity (Field, Strong, and Clifford dissenting) Arbor, 1960), 46; Hunt, Law and Locomo- refused to disturb Wilson because ‘‘con-

tives, 33-34. tracts mark the progress of communities in 102. Ohio Life Insurance & Trust Co. v. civilization and prosperity. They guard, as

Debolt, 16 How. 416 (1853) at 435-436. far as possible, against fluctuations in 103. Slidell v. Grandjean, 111 U.S. 412 human affairs ... they seek to give stability (1884) at 438. See also Wheeling & Belmont to the present and certainty to the future... Bridge Co. v. Wheeling Bridge Co., 138 U.S. They are the springs of business, trade, and

287 (1891), where Field restates Taney’s commerce; without them, society could not concerns regarding the Charles River Bridge goon.”

case. 114. Home of the Friendless v. Rousse, 8

104. Dodge v. Woolsey, 18 How. 331 Wall. 430 (1869) at 443; see also Field’s dis(1855) at 371. For the persistent criticism of cussion in Tomlinson v. Jessup, 15 Wall. Fletcher v. Peck by Justices Campbell and 454 (1873) at 458.

Daniel during the Taney era, see Dodd, 115. Pollock v. Farmers’ Loan & Trust

American Business Corporations before Co., 157 U.S. 429 (1895) at 586-608; see also 1860, 130-132; John P. Frank, Justice Daniel Arnold M. Paul, Conservative Crisis and the Dissenting: A Biography of Peter V. Daniel, Rule of Law: Attitudes of Bar and Bench, 1784-1860 (Cambridge, 1964), 205-212. 1887-1895 (Ithaca, 1960), 204. 105. Justice Field in Providence Tool Co. 116. Morgan v. Louisiana, 93 U.S. 217 v. Norris, 2 Wall. 45 (1865) at 55-56, hold- (1876); Railroad Co. v. Maine, 96 U.S. 499 ing unenforceable contract for lobbying ser- (1877). See also Ernest W. Huffcut, ‘Legisvices whose performance was contingent on lative Tax Exemptions,’ American Law successful procurement of government Review, 24 (1890), 399-427.

contract. 117. See the long line of state court deci106. West River Bridge Co. v. Dix, 6 sions cited in Thomas M. Cooley, Constitu-

How. 507 (1848) at 532. tional Limitations, 5th ed. (Boston, 1883), 107. See Field’s equation of these inher- 340. See also James F. Colby, “Exemption ent powers in The Delaware Tax Case, 18 from Taxation by Legislative Contract,’

Wall. 206 (1874) at 226. American Law Review, 13 (1878), 26-39.

- 108. Lawrence Friedman, Contract Law 118. Harry N. Scheiber, Ohio Canal Era: in America (Madison, 1965), 150; Oscar and A Case Study of Government and the EconMary Handlin, Commonwealth: A Study of omy, 1820-1861 (Athens, Ohio, 1969), 278,

the Role of Government in the American 296.

492

Notes to Pages 257-261

Law, 312. at 132.

119. Friedman, A History of American 134. Munn v. Illinois, 94 U.S. 113 (1877)

120. Ezell, Fortune’s Merry Wheel: The 135. Ibid. at 139. If one takes Lord Hale’s

Lottery in America, 233-270. - precepts literally, Field had the best of the

121. C. Vann Woodward, The Origins of argument. ‘“[Those] things that are Juris the New South, 1877-1913 (Baton Rouge, publici,” Hale wrote, “are [such] as ... are

1951), 14. . , common to all the King’s Subjects, and are 122. Boyd v. Alabama, 94 U.S. 645 (1877) of [these] kinds, viz: (1) Common High-

at 650. oe ways, (2) Common Bridges, (3) Common 123. Stone v. Mississippi, 101 U.S. 814 Rivers, (4) Common Ports’’ (Analysis of the (1880). See also Beer Co. v. Massachusetts, Law [Stratford, Eng., 1713], 63). For a 97 U.S. 25 (1878); Fertilizing Co. v. Hyde detailed critique of Waite’s use of Hale’s

Park, 97 U.S. 659 (1878). , tracts, see Van Buren Denslow, “Ira Y. 124. Butcher’s Union Slaughter-House = = Munn and George L. Scott v. The People of ~ Co. v. Crescent City Co., 111 U.S. 746 (1884) Illinois,” American Law Register, 25 (1877),

at 754. 939-545.

125. Illinois Central R.R. Co. v. Illinois, 136. Slaughterhouse Cases, 16 Wall. 36

146 U.S. 387 (1892). Joseph Sax, an eminent (1873) at 88.

legal scholar interested in protecting the 137. Munn v. Illinois, 94 U.S. 113 (1877) ‘public trust’ in such matters as wilderness at 149, 152. areas and pesticide control, refers to Field’s 138. Waite to J. Sheldon, March 30, 1877, opinion as “the lodestar in American Public quoted in C. Peter Magrath, Morrison R. Trust Law” in “The Public Trust Doctrine = == Waite: The Triumph of Character (New in Natural Resource Law: Effective Judicial York, 1963), 187. Intervention,’ Michigan Law Review, 68 139. See Morton Rothstein, ‘“The Interna-

(1970), 487. tional Market for Agricultural Commodi126. This doctrine logically flowed from ties,” in Economic Change in the Civil War the Court’s earlier commerce and admiralty Era, ed. David Gilchrist and W.D. Lewis opinions, where the Court had recognized (Greenville, Del., 1966), 62-72; Harold D. navigable bodies of fresh water to be “‘pub- Woodman, “Chicago Businessmen and the lic highways.” See Field’s opinion in The Granger Laws,” 16-24. Daniel Ball, 10 Wall. 557 (1871); Milton 140. Munn v. Illinois, 94 U.S. 113 (1877)

Conover, ‘‘The Abandonment of the at 138, 140.

‘Tidewater’ Concept in Admiralty Jurisdic- 141. Ibid. at 141.

tion in the United States,’’ Oregon Law 142. Corwin, ‘“‘The Basic Doctrine of

Review, 38 (1958), 34-58. American Constitutional Law,” 247.

127. Illinois Central R.R. Co. v. Illinois, 143. In the ‘‘Granger’’ states, where the

146 U.S. 387 (1892) at 452. convergence of regulation and repudiation

128. Ibid. at 451. , was most prominent, annual railroad con-

129. Ibid. , struction declined from 3,086 miles added 130. Providence Tool Co. v. Norris, 2 — in 1872 to 550 miles added in 1876. Once

Wall. 45 (1865) at 55. the Court refused to condone repudiation 131. See the scathing editorial attack on and the rate laws were one by one repealed

Field’s opinion, ““The Police Power and the (the last in 1878), new construction

Lake Front Case,’’ Harvard Law Review, 6 rebounded to former levels. In 1880, 2,915

(1893), 444-445. miles were added in the former ‘‘Granger”’

132. Munnv. Illinois, 94 U.S. 113 (1877). states. Although a financial panic and ensu133. Sinking-Fund Cases, 99 U.S. 700 ing depression certainly played a major role (1878) at 747. See Scheiber, “The Road to in the decline of new construction between Munn,” 355-360; Charles Fairman, ‘““The So- 1873 and 1878, contemporaries tended to

Called Granger Cases, Lord Hale, and Jus- attribute it to repudiation and regulation tice Bradley,’ Stanford Law Review, 5 alone. See Andrew Allison, “The Rise and

(1953), 587-679. Probable Decline of Private Corporations in

493

: Notes to Pages 261-263 America,’ Report of the Seventh Annual 153. Ibid. at 455. Meeting of the American Bar Association 154. Stone v. Wisconsin, 94 U.S. 181

(Philadelphia, 1884), 241-256. (1877) at 183. Virtually all the contem144. Harlan to Waite, not dated, quoted porary journalists and railroad “experts”

in Alan F. Westin, “Stephen J. Field and the asserted that what Field feared had, in fact, Headnote to O’Neil v. Vermont,” Yale Law occurred. For a full analysis of the literature Journal, 67 (1958), 376. See also Budd v. on rate regulation published between 1872

New York, 143 U.S. 517 (1892); Brass v. and 1878, see Charles R. Detrick, ‘‘The

North Dakota, 153 U.S. 391 (1894). Effects of the Granger Laws,” Journal of 145. Chicago, Burlington & Quincy R.R. Political Economy, 11 (1903), 137-156. v. Iowa, 94 U.S. 155 (1877); Peik v. Chicago 155. Attorney General v. Railroad Com- & Northwestern R.R. Co., 94 U.S. 164 panies, 35 Wis. 425 (1874) at 579.

(1877); Chicago, Milwaukee & St. Paul Ry. 156. See text at n. 28. Field quoted v. Ackley, 94 U.S. 179 (1877); Winona & St. Miller’s Pumpelly dictum in full in Munn v. Peter R.R. v. Blake, 94 U.S. 180 (1877); Illinios, 94 U.S. 113 (1877) at 144.

Stone v. Wisconsin, 94 U.S. 181 (1877). 157. Ibid. at 145-148; see discussion

at 134. 158. Ibid. at 141. 146. Munn v. Illinois, 94 U.S. 113 (1877) above, n. 60.

147. Railroad Co. v. Maryland, 21 Wall. 159. Tomlinson v. Jessup, 15 Wall. 454

456 (1875) at 471. (1873) at 459. See also William Maxwell

148. Justice Bradley dissenting in Chi- Evarts’s argument in the Wisconsin rate cago, Milwaukee & St. Paul Ry. v. Minne- cases, partially reprinted in [Edward

sota, 134 U.S. 418 (1890) at 461. See also Abbott], ‘““The Wisconsin Railroad