1815-1850: Law and Justice: Overview

Heroic Era. The period from 1815 to 1850 is often called the golden age of American law. The famous names of the era illustrate its centrality in American legal history and help explain the importance the bench and bar assumed during these years. John Marshall, chief justice of the United States Supreme Court from 1801 until 1835; his successor, Roger B. Taney, who served as chief justice until 1864; and Joseph Story, an associate justice from 1811 until 1845, rank among the dozen most important justices in the history of the Supreme Court; William Johnson, an associate justice from 1804 until 1834, is one of the most noteworthy figures in the second echelon. Even more striking is the honor roll of statecourt judges, including James Kent of New York, Lemuel Shaw of Massachusetts, Thomas Ruffin of North Carolina, and John Bannister Gibson of Pennsylvania. More state-court judges earned lasting national reputations between 1815 and 1850 than in the rest of American history combined. The publications of Kent and Story, moreover, are the fountainheads of American legal scholarship. Practitioners did not lag behind in prestige: no advocate has ever captured the national imagination as well as Daniel Webster, the hero of Stephen Vincent Benet’s “The Devil and Daniel Webster.” As Alexis de Tocqueville observed in Democracy in America, lawyers constituted “a separate rank in society.”

Constitutionalism. The most obvious reason for the creativity and prominence of law was the role of the Constitution in American public life. As a result of the American concept of constitutionalism, Tocqueville noted, “there is hardly a political question in the United States which does not sooner or later turn into a judicial one.” Although the United States Supreme Court had established its authority to invalidate congressional legislation on constitutional grounds in Marbury v. Madison (1803), the workings of constitutionalism generally did not center on coordinate judicial review (that is, federal court review of congressional acts, or state-court review of state legislation). After Marbury v. Madison the Supreme Court did not strike down another federal statute until Dred Scott v. Sandford (1857), and state courts were only slightly more activist. The New York court, for example, invalidated only three statutes in the 1820s and three more in the next decade. Instead, the form of constitutionalism that dominated headlines was federal review of state legislation. In the era of nationalist sentiment and sectional conflict that followed the War of 1812, the federal judiciary assumed a key role in defending the Union from the incursions of state governments and in providing a civic showplace for strengthening the allegiance of American citizens.

Supreme Court. The chief institutional manifestation of constitutionalism was the enhanced importance of the United States Supreme Court. During its first quartercentury the Court had often seemed a relatively minor branch of government. Joseph Story joined the Court at the age of thirty-two in 1811 after two other men turned down nominations offered them by President James Madison. During the next two decades, however, the office of Supreme Court justice would grow in stature to the point that President Andrew Jackson would identify Story as “the most dangerous man in America.” This steadily increasing authority prompted many politicians during the debates leading up to the Compromise of 1850 to look to the Supreme Court to resolve the most fateful constitutional conflict in American history, the dispute over congressional authority to regulate slavery in the federal territories. The Supreme Court would soon take on this challenge, with disastrous consequences, in Dred Scott.

Economic Change. The judicial role in defining the structure of the Union was only part of the reason for the increased importance of the Supreme Court, however, and it did not begin to explain why the state courts flourished so impressively from 1815 to 1850. In addition to the political inheritance of the Revolutionary era, the other basic force underlying the golden age of American law was the profound transformation of the economy. The rise in newspaper coverage of the Supreme Court illustrated the confluence of constitutionalism and economic change. The press devoted little attention to the Court at the outset of the period, virtually ignoring the landmark ruling in Martin v. Hunter’s Lessee (1816) that the Supreme Court could reverse decisions of state supreme courts on issues of federal law. The Court burst into the national spotlight for the first time in the 1819 term with three decisions that not only struck down state laws but exercised this judicial power in matters of vast economic importance. The newspaper reports on Sturges v. Crowninshield (which invalidated retrospective application of state bankruptcy laws), McCulloch v. Maryland (which shielded the Bank of the United States from state taxes), and Dartmouth College v. Woodward (which recognized corporate charters as contracts that state legislatures could not impair) reflected an appreciation that the Court’s decisions could profoundly shape not only federal-state relations but the great economic interests of society and the conditions of everyday life. In cases such as Gibbons v. Ogden (1824), which addressed the authority of states to regulate interstate commerce, key economic issues often posed questions of federalism about the rules governing the American common market.

Common Law. State statutes of the sort reviewed in Sturges, McCulloch, Dartmouth College, and Gibbons were one of the most important forms of economic regulation in antebellum America. The other major source of economic regulation was the common law, that is, court decisions in cases not governed by legislative enactments. Common law provided the basis for decisions in many areas, including such vital subjects as the rules governing the use and conveyance of land, a topic of immense importance in this era of rapid settlement and economic development. Economic change was not the only force shaping the common law. As in constitutional law, a distinct but sometimes converging factor was the political legacy of the Revolutionary era, and one important theme of the period was the continuing effort to bring institutions like the family into line with republican ideals. But the revitalization of trade after 1815, the spread of market relations, the growth of industry, and the need to allocate risks in a convulsive economy were the most important pressures leading to innovation in the common law.

Instrumental Conception. The relationship between state legislatures and state courts as sources of economic regulation reflected a new view of the sources of the common law. In the eighteenth century the Anglo-American tradition had treated the common law as an emanation of natural law; it was a set of immutable, universal rules discerned and applied by wise judges. Daniel Delaney summarized the common place pre-Revolutionary view that “the Common Law, takes in the law of Nature, the law of Reason, and the revealed Law of God; which are equally binding, at All Times, in All Places, and to All Persons.” This understanding of legal authority disintegrated in a nation predicated on contract as the basis of governmental authority. The common law was not a body of principles waiting to be discovered, Americans came to maintain. Instead, it was like the Constitution, federal laws, state legislation, and other rules, made by particular people to meet particular needs. Judges Tapping Reeve and James Gould, instructors at the influential Litchfield Law School, told their students that “theoretical[ly] courts make no law, but in point of fact they are legislators.” The new approach to law made judicial decision making an instrument for achieving social goals such as economic growth and opened the door to explicit policy rationales for the adoption of particular legal principles. Thus, Massachusetts chief justice Lemuel Shaw held in Cary v. Daniels (1844) that the right of a property owner along a river to appropriate the current—the basic source of power for early factories—depended not only on principles of fairness but also on “usages and wants of the community” and “the progress of improvement in hydraulic works.”

Judicial Power. The policy-making approach to adjudication helps to explain the singular prominence of the state bench during the years from 1815 to 1850. The position of state judge was sufficiently powerful to induce Lemuel Shaw, who was making approximately $15, 000 per year as a practitioner in the late 1820s, to accept an appointment as chief justice of the Massachusetts Supreme Judicial Court at an annual salary of $3, 000 and to hold the position for three decades. To be sure, there were ambitious men who left the bench, but even they pointed with pride to their judicial careers as extraordinary distinctions. Long after he had become the most powerful member of the United States Senate, Stephen A. Douglas was generally known on the political hustings as “Judge” Douglas in acknowledgment of the two years that he served on the Illinois Supreme Court. The publication of state-court decisions, a trend that spread to every state by 1847, further underscored the importance of state judges and their decisions. The most important testimony to the power of the bench, however, was the effort devoted to controlling it. One strategy was the codification movement, which sought to replace the judicial discretion of the common law with legislative rules of decision that would resolve most cases. Another and more successful reform was the shift from appointment to election of state judges, which swept through the Union after its limited adoption in the Ohio constitution of 1802 and the state of Georgia in 1812. By 1850, when the Michigan and Pennsylvania Supreme Courts became elected bodies, two-thirds of the states had given voters partial or complete power to choose judges.

Law and Culture. A mainspring for the realization of the Revolution and the emergence of modern capitalism, the law radiated into almost every area of American life. The pervasive imprint of the legal mentality is illustrated by one of the central figures of contemporary popular culture, Charles Grandison Finney. A self-educated attorney in western New York, Finney gave up his prosperous practice after experiencing a divine vision in 1821 and became one of the most powerful forces in the triumph of evangelical revivalism. But he did not abandon his professional identity or the methods of the bar. “I was bred a lawyer,” he reminded listeners. “I came forth from a law office to the pulpit, and talked to the people as I would talk to a jury.” His famous invention of “the anxious bench”—a place where he could interrogate penitents during revival meetings—brought the mechanism of cross-examination to the process of conversion. By turning to his experience as an attorney to guide his work as a preacher, Finney dramatized the extent to which the legal profession, however deprecated at times, had achieved an influence traditionally wielded by the learned ministry. Not merely a mechanism for resolving private disputes, the law had become an integral component of American politics, economics, and culture.