1850-1877: Law and Justice: Overview

After the Golden Age. Observers of American law during 1850–1877 frequently remarked on the passing of a heroic era of legal creativity. By 1860 nobody in the country associated with the law enjoyed the stature that had been shared by a dozen figures a generation earlier. Gone were the Olympian jurists such as John Marshall, Joseph Story, James Kent, Lemuel Shaw, John Bannister Gibson, and Thomas Ruffin. No longer did any lawyer grip the public imagination as Daniel Webster, William Wirt, and Rufus Choate once did. Few people continued to discuss the penitentiary movement that had brought Alexis de Tocqueville to the United States on a tour of inspection in 1831–1832, during which he concluded that “it is at the bar or the bench that the American aristocracy is found.” The sectional convulsions over the Constitution notwithstanding, the third quarter of the nineteenth century seemed lackluster in comparison as an epoch of law. Paradoxically, however, this era saw the establishment of institutions and the development of ideas that would remain central to American law for decades to follow. The emerging principles, moreover, would prove to be central to the constitutional resolution of the crisis of the Union.

Law and the Economy. The decline in the public profile of judges and lawyers partly reflected the new role played by law in the American economy. During the first half of the nineteenth century, the law had been instrumental in the profound reordering of society from a network of local agricultural exchanges into a more varied, wide-ranging, and intensified capitalism in which industry was the most dynamic sector. This process partly took place in state legislatures, through grants of property and special privileges to entrepreneurs; and it partly took place in constitutional law, through judicial protection of property interests from legislative interference and through federal supervision of state regulations that threatened to impair the workings of the American common market. No less important than these features of public law, or the relations between government and individuals, was the transformation of private law, or the relations between individuals. Under the Anglo-American common-law tradition, the rules governing these relations were defined by judicial decisions in lawsuits, which produced an accumulation of precedents to guide the handling of similar situations. By midcentury, decisions in such cases had overhauled the laws governing the enforcement of contracts and the use of property in order to facilitate commercial exchanges and spur industrial development.

The Invention of Torts. Perhaps the most spectacular example of the relationship between common law and economic development at midcentury was the blossoming of an entirely new area of law called “torts” governing the availability of compensation for personal injuries. The very existence of the subject reflected the industrial revolution, for the injuries covered by tort law usually resulted from the acceleration of technology and especially from the expansion of railroads. Of course torts could occur in other settings as well; the watershed statement in the field—Chief Justice Lemuel Shaw’s opinion for the Massachusetts Supreme Court in Brown v. Kendall (1850)—involved an accident that took place when one man hit another while using a stick to break up a fight between two dogs. But the principle set forth by Shaw in the case was of vital importance in the cases between business enterprises and individual victims, for Shaw found that liability for injuries caused in an accident would only result if the defendant was “negligent.” In other words, if a railroad company exercised reasonable care, the disastrous consequences of accidents that occurred through sheer mishap would be a burden borne by victims rather than by the railroads. English courts moved to modify this principle in Rylands v. Fletcher (1868), finding that entrepreneurs engaged in an hazardous activity like dynamite blasting should be responsible for any injuries that resulted, even if the activity was conducted with reasonable care. American courts, meanwhile, moved slowly to adopt this rule of “strict liability,” preferring to shift more of the costs of economic activity away from enterpreneurs by applying the rule of negligence even to hazardous activities.

Development and Distribution. American zeal for economic development certainly did not decline after midcentury; to the contrary, it continued to deepen. The impact of economic policy on the distribution of wealth in the nation increasingly became the chief focus of lawmakers, as is illustrated by changing approaches to the authority of municipalities to invest in railroads. Ruling in “the most important case that has ever been in this Court since the formation of the government,” Pennsylvania Chief Justice Jeremiah S. Black in Sharples v. Mayor of Philadelphia (1853) resoundingly endorsed the state legislature’s power to sanction railroad investments; similar rulings occurred in New York, Connecticut, Illinois, Ohio, Virginia, Kentucky, and Tennessee. “A railroad is a public highway for the public benefit,” Black argued, because “travel and transportation are cheapened by it to a degree far exceeding all the tolls and charges” and because it provided the public with “rapidity, comfort, convenience, increase of trade, opening of markets, and other means of rewarding labor and promoting wealth.” In short, the state could use its taxing power to regulate the railroads, which benefitted the general public as well as the private investors. Black’s analysis contrasts sharply with the decision on the same question reached by Thomas Cooley of the Michigan Supreme Court in the 1870 case of People v. Salem, which held that “the money when raised is to benefit a private corporation; to add to its funds and improve its property; and the benefit to the public is to be secondary and incidental.” Cooperation with the legislature to promote economic growth had given way to supervision of the legislature to prevent redistribution of wealth.

Judicial Power and Profile. The increasing attention to the distribution of wealth in a mature economy changed the relationship between judges and the general public. No longer did judges win fame for patriotically adapting the English common law to American circumstances or for unshackling the law from centuries-old doctrines that inhibited economic development or for defending federal authority from state usurpation. The issue of wealth distribution posed particular difficulties for judges because the same desire to attack economic privilege had also called into question the legitimacy of judge-made law in a democratic society. This challenge to judicial legitimacy was clearest on occasions when courts declared unconstitutional, and hence invalid, statutes that had been enacted by elected legislatures. The chief response of the bench to this democratic critique was to emphasize that judicial decisions reflected professional expertise. Arguments about the law increasingly took place in a more specialized, abstract, and neutral-sounding vocabulary. Judicial opinions became less comprehensible to the general public than the decisions of justices John Marshall or Joseph Story, whose writings had often been directed to the community at large. Paradoxically, therefore, judges tended to be more obscure in their renderings after midcentury even as the exercise of judicial review increasingly involved courts in political controversies.

Advocates. The changing role of the lawyer in American society in some ways paralleled that of the judge. It remained true, as Tocqueville had observed, that almost every important political issue in the country was at some point translated into a constitutional case. These contests before the United States Supreme Court continued to feature a small circle of influential lawyers, which during 1850–1877 included Jeremiah S. Black, David Dudley Field, Reverdy Johnson, William Maxwell Evarts, and Charles O’Conor. But just as the language of judicial opinions had changed, so had the language of lawyers’ arguments. The golden age of American oratory was ending during the 1850s, and lawyers’ speeches inside and outside of the courtroom no longer formed a major part of American literature, as they had in the era of Daniel Webster. Beyond the decline of oratory, the intensifying specialization of the law meant that attorneys less often engaged broad audiences. One implication was that the passage from law to literature, which had been followed by such prominent authors as Washington Irving and William Cullen Bryant, became more difficult to navigate. The novelist Henry James, shuddering at the memory of the year he spent at Harvard Law School during the Civil War, expressed gratitude that he had “recognized the false steps, even though few enough, already taken, and consciously committed myself to my particular divergence.”

The Age of Contract. Even as judges and lawyers retreated into a more secluded but strategically powerful position in American society, the intellectual frameworks of the law continued to diffuse into everyday life. Law influenced Americans not only by direct command, but also by supplying analogies and concepts for thinking about social relations. This trend might be observed in politics, where disagreements about the spread of slavery into the federal territories became a matter of constitutional principle after it had been handled in less systematic ways since the Northwest Ordinance of 1787. The most sweeping claim of legalistic thinking was the famous observation of Sir Henry Maine in his Ancient Law (1861) that “the movement of the progressive societies has hitherto been a movement from Status to Contract.” Civilization itself, he suggested, was defined by the treatment of individuals on the basis of their voluntary agreements rather than on the basis of their classification into a group. Maine offered his generalization about world history at a particularly significant moment for the United States, at the outset of a war that would culminate in the destruction of a society based on the status of slavery. In the Reconstruction era that followed, Northerners would define the rights of freedom largely as the power to make and enforce contracts.

Marriage as Contract. The pervasiveness of contract as a model for social relations was illustrated by the continuing transformation of marriage, a process that had begun before 1850. Anglo-American common law traditionally treated the property rights of married women in the status of coverture. As summarized by James Kent as late as 1832, the basic principle of coverture was that “the husband and wife are regarded as one person, and her legal existence and authority in a degree lost or suspended, during the continuance of the matrimonial union.” Beginning with Mississippi in 1839, states eroded this principle through legislation that extended to women the capacity to hold, manage, and dispose of property; seventeen states had passed married women’s property acts by 1850. The reform continued to expand into new states after midcentury and to recognize in additional ways the rights of married women to make contracts and control property. For example, in 1869 Illinois passed legislation securing to married women the rights to their own earnings; one of the principal advocates of the bill was Elizabeth Packard, who had accumulated considerable earnings as the author of a sensational memoir attacking the legal structure that had enabled her husband to commit her involuntarily to a lunatic asylum. The increasing liberalization of divorce similarly reflected the reconceptualization of marriage as a contract that the parties might agree to dissolve rather than a permanent status. Other states liberalized their divorce laws after 1850; South Carolina permitted divorce for the first time during Reconstruction. Yale College president Theodore D. Woolsey’s Divorce and Divorce Legislation (1869) signaled a backlash that would become fairly powerful by the 1880s, but this book also measured the extent to which law had displaced religion as a basic framework for understanding social relations.

Law as Theater. Legislatures and appellate courts articulated the changing rules of law, but it was the trial process that continued to grip the public imagination. Sensational cases—usually involving sex, murder, or both—had long been part of the American scene, and the expanding popular press now publicized them more widely than ever before. Often these cases illuminated social tensions. The San Francisco trial of Laura Fair in 1871 for the murder of her lover, Alexander Parker Crittenden, became a rallying point for woman’s rights advocates outraged that the defendant’s fate rested with an all-male bench and jury. The 1874 trial of New York preacher Henry Ward Beecher for seducing the wife of journalist Theodore Tilton similarly served as a crucible for analysis of gender relations and religion. At times these cases even involved innovations in legal doctrines. In 1859 Congressman Daniel Sickles, acquitted of murder charges after killing his wife’s lover, became the first defendant to maintain that temporary insanity excused his crime; Laura Fair put forward a similar defense of insanity.

Continuities after 1877. The developing law of criminal insanity, which claimed central stage in American law with the trial of President James Garfield’s assassin, Charles Guiteau, in 1881–1882, was one of many areas of continuity between the third and fourth quarters of the nineteenth century. The period from 1850 to 1877 is more sharply defined in law at the beginning than at the end. Key developments in the law during the Civil War and Reconstruction era—including the rise of legal formalism, the redefinition of the corporation, and the expansion of judicial review—reached full realization in the later nineteenth century. Significantly, it was the dissenting opinions in the Slaughterhouse cases (1873), perhaps the most important Supreme Court decision of the era, that provided a blueprint for future constitutional thought. But if the story of American law between 1850 and 1877 lacks its logical conclusion, within that narrative can be seen the main outlines of the legal culture that remained dominant in the United States until the Progressive Era of the late nineteenth and early twentieth centuries.