0521824621 cambridge university press the creation of american common law 1850 1880 technology politics and the construction of citizenship jan 2004

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The Creation of American Common Law, 1850–1880
Technology, Politics, and the Construction of Citizenship
This book is a comparative study of American legal development in
the mid-nineteenth century. Focusing on Illinois and Virginia, supported by observations from six additional states, the book traces the
crucial formative moment in the development of an American system
of common law in northern and southern courts. The process of legal development and the form that the basic analytical categories of
American law came to have are explained as the products of different
responses to the challenge of new industrial technologies, particularly
railroads. The nature of those responses was dictated by the ideologies that accompanied the social, political, and economic orders of the
two regions. American common law, ultimately, is found to express an
emerging model of citizenship, appropriate to modern conditions. As a
result, the process of legal development provides an illuminating perspective on the character of American political thought in a formative
period of the nation.
Howard Schweber completed his undergraduate studies at the University of Pennsylvania and received a J.D. from the University of
Washington in 1989. He practiced law for several years, primarily in San
Francisco, then returned to academic pursuits, earning an M.A. in history from the University of Chicago in 1994 and a Ph.D. in government
from Cornell University in 1999. Since that time, he has taught in the
Political Science Department at the University of Wisconsin–Madison.
He is the author of Speech, Conduct, and the First Amendment (2003)

and articles in journals such as Law and History Review, Law and Society
Review, Studies in American Political Development, and Science in Context.

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The Creation of American
Common Law, 1850–1880
Technology, Politics, and the Construction

of Citizenship

HOWARD SCHWEBER
University of Wisconsin–Madison

iii


cambridge university press
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Published in the United States of America by Cambridge University Press, New York
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© Howard Schweber 2004
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without the written permission of Cambridge University Press.
First published in print format 2004
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guarantee that any content on such websites is, or will remain, accurate or appropriate.


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Contents

Acknowledgments

page vii

Introduction
1 North and South
2 Illinois: “We Were Determined to Have a Rail-Road”

1
13
44

3 “The Memory of Man Runneth Not to the Contrary”:

Cases Involving Damage to Property

63

4 “Intelligent Beings”: Cases Involving Injuries to Persons
5 The North: Ohio, Vermont, and New York
6 Virginia through the 1850s: The Last Days of Planter Rule

90
118
147

7 The Common Law of Antebellum Virginia: The Preservation
of Status
8 Virginia’s Version of American Common Law: Old Wine in
New Bottles
9 The South: Georgia, North Carolina, and Kentucky
10 Legal Change and Social Order

194
226
259

Index of Cases
Bibliography
Index

273
279
293

168

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Acknowledgments

This book is based on research that began at the University of Chicago and
was continued at Cornell University and at the University of Wisconsin,
supported by grants from the University of Chicago, the Mellon Foundation, and the University of Wisconsin. At all stages in the project, I

benefited immensely from the guidance and critical insights of numerous
scholars. In particular, I would like to thank (in alphabetical order) Greg
Alexander, Richard Bensel, David Canon, Mark Graber, Isaac Kramnick,
Theodore Lowi, and Steve Sheppard for their guidance, encouragement,
and assistance. Portions of the research in this book appeared previously
as an article in Studies in American Political Development; Karen Orren,
Steven Skowronek, and several anonymous readers helped shape that portion of the discussion. Anonymous readers for Cambridge University Press
provided thoughtful and illuminating critiques of earlier versions of the
entire manuscript. Janet Donovan and Richard Parrish provided invaluable research assistance. In conducting research for this book, I was the
beneficiary of the generous assistance of the reference staffs at Cornell’s
Olin Library, the Cornell Law School Library, the University of Chicago
Law School Library, the University of Wisconsin Law School Library, the
Illinois Historical Society Archives, the Virginia Supreme Court Library,
the Library of Virginia, and the Virginia Historical Society. Reference librarians are the unsung heroes of the world of scholarship; certainly this
book would have been impossible without them. In writing this book,
I have benefited from the efforts of no fewer than three exceptionally
fine editorial minds: Lewis Bateman, Andrew Saff, and Lynn Schweber.
The last-mentioned of these has lived with this project since its inception, and has helped in its creation in innumerable ways, among which
vii


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Acknowledgments

her keen editorial eye is perhaps the least important. Elements of the
argument of this book were presented as papers at annual meetings of
the American Political Science Association, the Western Political Science
Association, the American Society for Legal History, and the University
of Wisconsin Workshop in American Political Development, and at job
talks at the University of Wisconsin’s Department of Political Science and
Law School. Audience members present at each of those presentations
made helpful, interesting, and often provocative comments. The errors
that remain are my own.


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Introduction

In the decade preceding the Civil War, judges in the highest courts of
northern states created the system of American common law. The principles of tort, contract, and property liability that these judges developed
were entirely different from the inherited system of English law that they
replaced. The language and categories of pleading, the allocation and
definition of burdens of proof, the standards for the description, and the
adjudication of cases all were transformed. This was not merely a process

of revision; it was a reconfiguration of the basic reasoning process that
defined the logic of the law, its political significance, and its social function. These new, uniquely American common law principles, moreover,
remain the basic elements of American legal thought and discourse to
this day.
There was not a single, national pattern of legal development. Instead,
there were two distinct regional patterns of development, each relatively
uniform, in the North and the South. The principles of American common
law were first worked out by judges in northern courts in the 1850s.
Those principles were ultimately adopted by courts in the South in the
1870s, imported wholesale from the northern jurisdictions in which
they had been created. But the antebellum, decade-long process in which
American legal doctrines were developed and worked out was solely a
northern one. The immediate questions, then, are why was there such a
sharply bifurcated pattern in the historical development of American law,
and what are the consequences of recognizing this differential pattern
of development for our understanding of the relation between legal and
political thought and American political development in the nineteenth
century?
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The American version of common law that was created and developed
in northern state courts of the 1850s differed from the earlier version in
a number of ways. First, where English common law had been divided
into dozens of categories and subcategories, each with its own set of rules
and its own approach for the analysis of cases, American common law
was organized around the broad, unified categories of tort, contract, and
property law that are familiar to modern lawyers. This was more than a
matter of simplifying pleading practices. The new organization of legal
categories meant the rationalization of the common law, such that a single
set of principles would govern a vast range of different cases.
Second, the rights and duties of legal actors were similarly made uniform. In the English system, and the earlier American system, the legally
enforceable obligations that one actor owed another would be determined
on the basis of the status of each person and the precise relationship between the actors. In the new American system, conduct was evaluated
against an objective standard rather than in terms of relational claims,
and everyone was universally bound by the same duties. These duties,
moreover, were not owed by one individual to another based on their
relationship in a given interaction; they were owed by everybody to the
world at large. That is, everyone was bound to behave in accordance
with duties of care at all times because that was the obligation that the
law placed on the members of American society. That obligation was not
conceived in terms of the welfare of one’s fellow citizens as individuals
involved in transactions, but rather in terms of the collective welfare of
the nation. That collective welfare, in turn, was phrased not in the traditional terms of preserving local order, but rather in terms of a vision of
technology-driven progress.
Above all, the universal duty that was the hallmark of American common law in the antebellum North was the duty to avoid obstructing the
wheels of progress. Technology-driven progress, exemplified by trains,
defined a set of public goods that the common law would be called upon

to serve. Paramount among these was the Need for Speed, the imperative
demand of the emerging political economy for efficiency, regularity, and
rapidity, achieved by the work of machines. The result was a universal set
of duties, equally applicable to everyone regardless of his or her social position or role in a transaction, that completely reconfigured the rules for
determining legal liability. Something of this idea is captured in what I will
call the Duty to Get Out of the Way, an idea exemplified in new rules that
made it the obligation of persons to avoid allowing themselves or their animals to be struck by trains, rather than the duty of trains to avoid hitting


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persons or stock. The idea also appears in the form of duties of workers to
avoid injury and to ensure the diligence and efficiency of other workers,
the duties of shippers of goods to avoid exposing carriers to unexpected
liabilities, and the duties of railroad passengers to avoid putting themselves in positions in which they might suffer injuries. All of these were
novel conceptions, and all of them were grounded in the ideas that society
required the benefits of technology-driven progress, and that citizens were
required to learn to behave in ways that would aid that progress.
The duty to accommodate progress swept through all areas of the law,
trumping all traditionally recognized property-based rights and entirely

displacing a traditional model in which legal duties arose out of the relationship between parties and could not extend beyond the relationship
that defined them. This new idea of a legally enforceable duty to be part
of the national mission of technology-driven progress was the solvent that
dissolved the old categories of common law adjudication and made room
for the new doctrines of American law.
The terms of the specific legal doctrines involved in this shift of focus
will be discussed in later chapters; at the outset, what is important to
recognize is that in the 1850s northern courts changed the starting point
for any legal adjudication. Where previously the process of adjudication
began with an analysis of relative claims of individual rights, now the focus
shifted to absolute claims of universal duties. And where the earlier inquiry
began with the conduct of the defendant and the harms that conduct
may have caused, the initial inquiry turned instead to the conduct of the
plaintiff and the question of whether such a person’s claims for damages
deserved to be heard. A person who failed to meet the standards of conduct
demanded by the collective interest in progress would have no claim on
the courts’ protection.
It was in this latter sense that the new, American system of common
law that emerged in the northern states in the 1850s was constructed
around a model of citizenship, one that replaced private rights with public
duties as its lodestone. By “citizenship” I do not mean the technical legal
categories of naturalization, or eligibility for participation in the formal
political process, although studies of the development of that concept in
the nineteenth century have shown patterns of exclusion and inclusion
that are echoed in the developments that are described here (Smith, 1997;
Neuman, 1996; Kettner, 1978). In the context of the common law, the
term “citizenship” refers to the qualifications that entitle a person to claim
the protection of public institutions. One of the fundamental elements
of nineteenth century American citizenship, as it had been in the English

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tradition, was the right to have one’s claims heard in a court. In 1803, John
Marshall stated the political proposition that made the rights of private
litigants under the common law so central to English, and then American,
republican thought. “The very essence of civil liberty certainly consists in
the right of every individual to claim the protection of the laws, whenever
he receives an injury. One of the first duties of government is to afford
that protection. In Great Britain the king himself is sued in the respectful
form of a petition, and he never fails to comply with the judgment of his
court.” (Marbury v. Madison, 5 U.S. 137, 163, 1803). The “essence of civil
liberty” might equally have been described as “the essence of citizenship.”
The right of an individual to call on the powers of the state to vindicate
a private claim, and the concomitant duty of the state to hear that claim,
had been the sine qua non of an Englishman’s full membership in the
political community. In the American experience, access to courts was
if anything an even more important measure of equal entitlement to the
prerogatives of citizenship.
When new legal doctrines defined the characteristics of persons entitled to present their claims in a court, they defined a new, legally delimited

set of standards for citizenship. The characteristics of persons entitled to
bring their private claims before a court for vindication described a model
of “virtues,” an ideal type that defined a citizen entitled to have his or her
interests heard by the institutions of public life. Parties who failed to show
that their conduct had demonstrated those legally required virtues could
not recover damages; the state would not vindicate such persons’ claims,
regardless of the conduct of the defendant. By focusing on the satisfaction
of universally applicable duties, this new legal model of American citizenship went beyond the political rhetoric of “responsible individualism”
(Lowi, 1986; Gold, 1990), defining to whom or what that responsibility
was owed in ways that were sharply at odds with earlier models of citizens as autonomous bearers of politically guaranteed legal rights. The
legal construction of American citizenship began from a rejection, rather
than an affirmation, of what Leonard Levy calls “the incorrigible individualism of the common law” (Levy, 1957: 316).
The model of citizenship reflected in the new common law doctrines
of the antebellum North fit neatly with a strand in nineteenth century
American political philosophy that scholars have dubbed “liberal republicanism,” or a theory of “liberal virtues” (Kloppenberg, 1987; Sinopoli,
1992; Dagger, 1997). Like classical republican theory, liberal republicanism demanded that citizens display certain qualities for the common
good rather than solely pursuing their own interests. In the nineteenth


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century American version, however, these virtues were not the province
solely of ruling elites, but rather belonged to everyone; concomitantly,
the obligation to behave virtuously would be imposed on everyone, and
the law would be the instrument for the enforcement of that obligation.
In T. H. Marshall’s classic formulation, citizenship implies “a kind of
basic human equality associated with the concept of full membership in
a community . . . which is not inconsistent with the inequalities which distinguish the various economic levels in the society” (Marshall, 1964: 70).
“Full membership” in the American political community includes access
to courts of law. The universal duties of American common law represented the legal construction of a model of citizenship that was liberal and
inclusive in its universality and its legal equality, but simultaneously republican and exclusive in its connection of the prerogatives of citizenship
to the display of requisite virtues.
The liberal inclusiveness that went along with the leveling tendency of
northern legal development should not be overstated. Even in northern
states that rejected slavery, equality did not always extend to free blacks,
a situation exemplified in the adoption by Illinois, after fierce debate, of
a constitutional provision barring their settlement in the state after 1850.
The construction of legal duties was also emphatically “gendered,” that
is, built around expectations drawn from the experiences of adult males
who were presumed to define the template of public life (King, 1995;
Welke, 1994, 1995; Chamallas and Kerber, 1990).1 Northern liberal republicanism was, as its name says, a species of republicanism, a theory
that contained a construction of “citizenship” in terms of qualities and
virtues and extended full membership only to those persons who were
deemed to possess those virtues. What was radically liberal about the system of American common law that emerged in the northern states were
the very broad terms in which the population of virtuous persons was
defined, and the complete rejection of any formal differentiation among
classes of citizens. The experiences of blacks and women received scant attention in the formation of either the political theory or the jurisprudence
in which it was articulated, but the legal model that was thus derived
applied equally – and was equally unforgiving – to everyone regardless of
race, gender, place of origin, or social status.

1

A married woman, for example, could not file lawsuits in her own name in most states
until the late nineteenth century. Instead, she would have to seek compensation in a suit
filed by her husband or “next friend.” In New York, this rule was changed in 1860; in
Illinois, the rule remained in force until 1874. By the early twentieth century, most states
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During the same period, the southern regional pattern was similarly
uniform, and similarly reflected underlying ideas about the virtues of citizenship, but the pattern was the opposite of that observed in the North.
Through the antebellum years, southern states’ highest courts steadfastly
resisted pressures to “reform” the common law. The political philosophy
of liberal republicanism described previously was a specifically northern
ideology. In the antebellum South, republicanism reigned supreme in a
form uncontaminated by the intrusion of liberal ideas. Instead, southern
elites’ republicanism became increasingly closely tied to the hierarchical
social order of slavery. In this context, political doctrines hardened around

themes of preserving social order, and common law doctrines became instruments for forestalling change. These differences in dominant political
cultures reflected differences in the social and political economic organizations of northern and southern society. In each case, unsurprisingly, the
ideology that was reflected among judicial elites was that which provided
the legitimating claims for their societies. That being the case, it may be
equally unsurprising that change came to northern American common
law at the same time that change came to the northern American system
of political economy. In both cases, moreover, change was carried by the
same vehicle: the railroads.
The differences between northern and southern legal development paralleled the differences between northern and southern attitudes about railroad development. Railroads were embraced by the same northern states
that embraced legal innovation as the engine of progress toward a glorious and novel future. By contrast, slaveowning elites resisted and feared
railroads, and technology generally, as potential threats, just as southern
courts resisted changes to the system of common law. But the connections between railroads and the creation of American common law are
much more specific than that. The cases in which the new doctrines were
worked out in northern courts were railroad cases. In state after state,
new doctrines were announced, tested, and developed in the context of
cases involving railroads. This is an important observation for this book.
It is not simply the case that railroad cases tended to feature new doctrines, it is rather the case that railroad cases were the cases – and very
nearly all the cases – in which new principles of law first appeared. The
cases from northern courts that are discussed in the chapters that follow
were chosen because they are all the cases in which these states’ highest courts developed new legal principles in the 1850s, and with only a
very few exceptions (noted in the text), these were cases that involved
railroads. Conversely, in the 1850s the southern courts whose records are


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examined here heard almost no railroad cases, and – sure enough – their
legal doctrines underwent no revisions. And in the 1870s, when change
finally came to the southern courts, it was carried, once again, by railroad cases. The cases from southern states that are discussed here are all
of those in which those states’ courts first announced their adoption of
various principles of American common law, and once again, these were
cases involving railroads.
It is not enough, however, merely to observe that modernization of
the law accompanied modernization of the economy in the North, nor
that resistance to legal innovation was accompanied by opposition to
economic change in the South. There was nothing in the adoption of rail
technology that necessarily implied radical reformation of the common
law. Consider the case of England, the quintessentially modern nation of
the late eighteenth and early nineteenth centuries (Alexander, 1997: 75;
Hawke, 1970: 55–90). In England, railroads were treated as unwelcome
intrusions by local parish elites, who responded by taxing rather than subsidizing their operations (Kostal, 1994: 364). Judicial elites resisted calls
for legal reform, continuing a pattern of institutional conservatism that
had been evident since the eighteenth century. The result was that the legal
response to the challenges posed by the railroads was to fit them into the
traditional common law system (discussed in the next chapter) (Kostal,
1994: 362–4; Hoeflich, 1989: 5). In response to injuries and damage,
English lawyers created “a new field of specialized law practice” rather
than attempting to unify the law into a single set of principles, while passengers and shipped goods retained the traditional protections of common
carrier liability (Kostal, 1994: 365–6). Specific rules such as the fellowservant rule were adopted, but there was nothing of the kind of complete reformulation and conceptual reorganization of legal doctrine that
defined the creation of a specifically American system of common law.

England, for example, did not adopt a general theory of negligence until
1932, and in other matters English common law was far from uniform,
with individual counties’ courts adopting rules in accordance with local preference (Donnelly, 1967: 742; Friedman, 1985: 25; see generally
Kostal, 1994). As Peter Karsten has observed, this fact is a challenge to
any deterministic account that presents legal change as epiphenomenal to
economic development (Karsten, 1997: 299). The railroads were a powerful engine for change, but the response to the railroads depended on
the political environment that preceded their arrival. To understand the
innovation or the absence of innovation in antebellum American law,
one must first understand the political environment that preceded the


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railroads, and the consequent reactions to the transformations that they
wrought.
One traditional explanation for a correlation between railroads and
legal development in America is the “subsidy thesis” associated with
Willard Hurst (Hurst, 1964; Friedman, 1985; Malone, 1986). This is
an argument that legal doctrines were nothing more than thin justifications for courts to do whatever it would take to serve the interests of the
emerging railroad industry, either because the owners of those companies

were immensely powerful or because the success of those companies was
viewed as a matter of immense importance, or some combination of these
two arguments. Other scholars have amassed considerable evidence in
favor of a similarly instrumentalist argument, but one that says that law,
and especially tort law, was developed in order to permit recovery from
new business enterprises (Rabin, 1981; Schwartz, 1981). Later arguments
added a level of ideological analysis; support for political economic developments, by this analysis, fit within a dominant ideology of corporate
capitalism, so that the use of law to subsidize development was merely an
expression of a greater desire to favor a system of political economy and
the legitimating ideology with which it was associated (Horwitz, 1992(a);
Wiecek, 1998).
The subsidy thesis and its variants echo earlier more-or-less deterministic theories of modernization in which legal ideas follow the necessary
courses created by economic and technological development. In Samuel
Huntington’s Durkheimian formulation, the development of advanced
technologies inevitably resulted in a process of rationalization of authority, the development of specialized institutions to serve differentiated political functions, and broadening political participation (Huntington, 1968:
93–193). Theodore Lowi, similarly, describes differentiation and rationalization as the defining characteristics of the political economy of midnineteenth century America. The law, in this conception, adjusted to the
demands of a changing economic order by accommodating the needs of
new classes of economic actors. Where the demands of capitalism and
the traditions of common law reasoning came into conflict, “capitalism
won out in a straight fight” (Lowi, 1979: 5). Nothing in the chapters
that follow will contradict this basic insight into what Joseph Schumpeter
called the “creative destruction” of capitalism applied to law (Schumpeter,
1975: 82).
More recently, legal historians have extended the proposition that
American law reflected American ideology still further, using the study
of the law to address the nature of American political thought and the


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relationship between state and society generally (Karsten, 1997; Tomlins,
1993; Wiecek, 1998; Gordon, 1996; Kennedy, 1980). These arguments
point to the idea that something called “culture” acts as an independent variable, or at a minimum as a medium of communication between
different positions on the political, economic, or social spectrum. Applying this mode of analysis to nineteenth century America, Stuart Bruchey
(1990) described a culture of capitalist development underlying a whole
series of attitudes toward questions of law and politics. Similarly, Irwin
Unger (1964) explained nineteenth century American politics in terms of
competition between different value systems that had associated modes of
economic activity, rather than economic systems with internally generated
principles of justification. By carefully developing the intellectual threads
that provided the vocabulary for nineteenth century legal discourse, legal
historians have illuminated the mediated connections between legal and
political concepts to show continuities and points of change in the development of common law categories (Alexander, 1997; Novak, 1996).
And a growing body of work in southern American legal history has begun to examine the distinctive patterns of sectional legal development in
that region of the country (Huebner, 1999; Hunt, 1998; Hunt, 1988; Ely
and Bodenhamer, 1986; Finkleman, 1985). Applying arguments drawn
from theories of modernization and political culture to the situation in
the antebellum South, we might expect to find that powerful elites shared
a dominant ideology whose legitimating claims were threatened by some
aspects of railroad development. And this, too, will emerge as the case in

the chapters that follow.
This book, while drawing on these works and others like them, attempts to further our understanding of nineteenth century law and politics
in several ways. First, by adding a systematic comparative dimension to
the analysis, this book seeks to illuminate the contours of both northern
and southern legal development. Second, by focusing extensively on the
connections between legal and political discourse, I have attempted to
connect the development of American common law to parallel patterns in
the development of regional political cultures. Both legal development and
railroad expansion depended on a vocabulary that connected the dominant political economic elites with a legitimating ideology. In places where
the dominant political culture was sympathetic to railroad expansion and
legal modernism, both flourished. In places where the dominant political
culture was hostile to both developments, neither occurred. In each case,
the approach to common law development reflected the commitment of
the courts to further or preserve the virtues of their societies. The values of


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the common law were not separate from the values of competing political
cultures, they were their wellsprings. The comparative study of the development of political and legal principles can thus illuminate both, and in

the process draw attention to the political commitments that are always
built into any system of legal thought.
The selection of Illinois and Virginia as the key comparative cases for
this study was driven by a recognition of the fact that these two states have
striking similarities as well as sharp differences. Virginia, the oldest state
in the Union, was from the eighteenth century through the Civil War the
bastion of civic republicanism in America. Although politically Virginia
was to be the leading state in the Confederacy, it was in some ways its least
southern. At the outset of the Civil War, in fact, there was serious concern
among southerners that Virginia might side with the Union. Virginia was
also the southern state in which industrialization, and particularly railroads, had made the deepest inroads, and it was therefore the southern
state in which the conflicts between traditional legal conceptions and the
consequences of modernization are most clearly visible.
Illinois is in some ways the opposite case. Antebellum Illinois was an
agrarian state of small towns and few cities (Howard, 1972: 146–56). Like
Virginia, Illinois was politically and culturally a deeply divided state, with
a southern portion whose population and outlook was predominantly
southern, and a northern section settled by northerners and European
immigrants. The northern part of the state, however, developed much
later than the southern section. Although Illinois became a state in 1818,
its entire northern section was not home to a significant number of people
until the 1830s and did not become the locus of state political power
until the late 1840s. Thus Illinois, and especially Chicago, represented
a new state built by railroads rather than an ancient traditional society
invaded by an alien force. In addition, railroads in Illinois did not develop
gradually, they arrived roaring across the landscape with blinding speed.
While there had been several mostly unsuccessful earlier attempts, the
state’s entire rail system was essentially constructed between 1850 and
1860. This meant that both the challenges and the opportunities created
by new modes of transportation and communication were sharply drawn.

The points of conflict between the imperatives of technological progress
and the needs of traditional agrarianism were inescapable, and it was in
response to those conflicts that Illinois demonstrated its political culture.
As a result, in its legal development, Illinois presents an exceptionally clear
case for study. Illinois’ common law demonstrates the consistent pattern of
legal development across the North from New England through the states


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of the Old Northwest, and the equally consistent relationship between law
and an emerging conception of citizenship.
Virginia and Illinois do not represent the northern and southern ideological extremes, but rather points of relative convergence between two
sharply separated halves of America’s national culture. Nonetheless, the
two states’ experiences were sharply different, reflecting dominant northern and southern patterns of development. The doctrines adopted by
Illinois in the 1850s were the same as those adopted in Vermont, New
York, and Ohio, despite significant differences in those states’ economic
circumstances, while Virginia’s common law followed the same path as
that of Georgia, North Carolina, and Kentucky, despite the same sorts of
differences in the economic and physical circumstances of those states. As

in the rest of the North, in the 1850s the Illinois Supreme Court’s innovations in the law defined a model of citizenship based on technological
exceptionalism, an expanded conception of the public good built around
an ideal of industrial progress, and the standardization of legal rights and
duties, while resistance to each of those ideas was at the heart of southern
legal conservatism. Later, in the 1870s and 1880s, Virginia and the other
southern states adopted the new American legal doctrines in ways that
evaded the conceptual commitments that had been at the heart of their
original formulations.
In the chapters that follow, I will present a closer study of the arcs
of political and legal development that resulted in the creation of an
American system of common law. In the first chapter, I will review the
differences between the political economies and political ideologies of the
antebellum North and South in more detail, and spell out the ways in
which the American system of common law departed from the earlier
system adapted from the common law of England. In Chapters 2, 3, and
4, I will present a close study of Illinois in the 1850s as an exemplar for
northern development. In Chapter 5, I will trace the similarities and differences between developments in Illinois and those of three other northern
states (Ohio, Vermont, and New York). Chapters 6, 7, and 8 consider
Virginia with the same kind of detailed analysis that was previously given
to Illinois, and in Chapter 9 the experiences of Virginia are compared
with those of three other southern states (Georgia, North Carolina, and
Kentucky). Finally, Chapter 10 presents some overall observations about
the significance of this study for understanding the relationships among
legal, political, and social development in nineteenth century America.
The organization of the discussions of Illinois and Virginia differs
slightly. The discussion of Illinois’ law focuses on the decade from 1850


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to 1860, during which the transformation of Illinois’ common law was
both begun and completed. The chapters describing that transformation
are divided in the conceptual fashion of nineteenth century digests, between cases involving harms to property and those involving harms to
persons, in order to show how the justices of the Illinois Supreme Court
drew together these disparate elements of the old common law system into
a new, unified regime. The discussion of Virginia, in contrast, is divided
chronologically, to chronicle that state’s resistance to change in the 1850s
and the manner of its eventual wholesale adoption of new doctrines in
the 1870s and 1880s. Thus Chapter 3 covers Illinois law concerning damage to property, while Chapter 4 covers harms to persons; by contrast,
in the Virginia discussion, Chapter 6 considers cases involving harms to
both property and persons in the 1850s, and Chapter 7 considers cases
involving harms to both property and persons in the 1860s and 1870s,
when the new doctrines that had appeared in the North in the antebellum
years finally made their appearance in the South. These same conceptual
categories are also used to organize the discussions of the other northern
and southern states in Chapters 5 and 9, respectively. Finally, in the last
chapter, I will return to the broader point of comparing the two cases in
terms of their respective constructions of citizenship, and the lessons that
may be drawn for the study of law and politics in general.

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North and South

The term common law means the body of rules created over time by judges,
as opposed to positive law – that is, statutes created by legislative enactment. Common law is developed through the accretion of precedents.
There is still no better description of this process than that provided by
Justice Lemuel Shaw of Massachusetts in Norway Plains Company v. Boston
& Maine Railroad, 10 Mass. (Gray) 263, 267 (1854):
[T]he common law consists of a few broad and comprehensive principles, founded
on reason, natural justice, and enlightened public policy, modified and adapted
to the circumstances of all the particular cases which fall within it. These general principles of equity and policy are rendered precise, specific, and adapted to
practical use, by usage, which is the proof of their general fitness and common convenience, but still more by judicial exposition. . . . such judicial exposition, when
well settled and acquiesced in, becomes itself a precedent, and forms a rule of law
for future cases, under like circumstances.

In the 1850s, therefore, it was judges who engineered the development
of a new body of common law. More specifically, a handful of judges in
each state, sitting on those states’ highest courts, were the crucial actors
in the creation and development of an American system of common law
that replaced the inherited English system.
To modern eyes, the distinction between common law and statutory

law appears close to the distinction that political scientists draw between
“private law” and “public law.” Private law rules govern the adjudication
of disputes between individuals, while public law regulates conduct in the
name of society at large (as in the case of criminal law) or governs the
conduct of institutional actors (as in the case of constitutional law). Even
today, however, the distinction is one more honored in the breach than
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the observance. In modern practice, legislatures (advised by committees)
frequently codify rules for the adjudication of individual disputes, while
private lawsuits are relied upon to enforce a range of public policies.
Conversely, in the English tradition, the authority of legislatures to
draft regulations was itself drawn from common law roots, and the common law was understood to be the source for political rights and duties.
Two Latin phrases captured the dual role of the common law in English
tradition. The common law basis for legislative power inhered in the
authority of local governments to regulate conduct in the name of the
public good, found in the principle salus populi suprema lex est (“the good

of the people is the supreme law”). Among early English settlers in North
America, no one was more committed to the ideal of a society ordered
by law than the Puritans of Massachusetts. It is, therefore, not surprising
that within the first few years of their settlement in Massachusetts, Puritan
lawmakers enacted a wide array of regulations, including wage and price
controls, limits on planting and settlement, requirements for the price of
beer and the size of bread loaves, and a ban on public smoking and the
sale of tobacco, to name only a few (Shurtleff, 1853: vol. I, 73–145).
It would not be until the nineteenth century that America would see
the development of a political ideology that posited the unregulated use
of private property as the sine qua non of political liberty, an argument
drawn from a mixture of theological and economic theory developed
by Scottish Calvinist writers Dugald Stewart, Adam Ferguson, and Adam
Smith. Through the end of the eighteenth century, and for many hundreds
of years before that, one of the fundamental premises of English common
law had been that salus populi was, indeed, suprema lex. As William Novak
put it, “[p]ublic regulation – the power of the state to restrict individual liberty and property for the common welfare – colored all facets of
early American development. It was the central component of a reigning
theory and practice of governance committed to the pursuit of the people’s welfare and happiness in a well-ordered society and polity” (Novak,
1996: 2).
The principle of salus populi pointed to the political role of English
common law, captured in the phrase “the rights of Englishmen,” that
would be so central to the thinking of common lawyers such as John
Adams. For English republicans, the common law served a constitutional
function, standing outside and precedent to the particular questions of
political organization or the limits of individual prerogatives. Titles of
nobility might be granted or rescinded, and regimes could come and go,
but the common law reflected a direct connection to claims of natural

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right. In 1470 an English serjeant-at-law was confronted by a challenge to
his court’s common law jurisdiction based on the claim that the defendant,
as a royal servant, could be tried only by a court of the King’s Bench by
a privilege “beyond the time of memory, and as old as the common law.”
In response, the magistrate declared that “common law has existed since
the creation of the world” (Wallyng v. Meger, 47 Selden Society 38, 1470).
And as John H. Baker observes, “it is not improbable that he believed it
literally” (Baker, 1990: 1).
By the seventeenth and eighteenth centuries, English legal writers had
moved to a different conception, one based in the recognition that common law doctrines were a collective and historical human creation. “Historical jurisprudence,” as it came to be called, posited the common law as
neither divinely inspired nor created by the positive edicts of a sovereign,
but rather reflecting the wisdom of a particular historically situated community, developed over generations:
For reason is the life of the law, nay the common law itself is nothing else but reason, which is to be understood as an artificial perfection of reason, gotten by long
study, observation, and experience, and not of every man’s natural reason. . . . [I]f
all the reason that is dispersed into so many liberal heads were united into one,
yet could he not make such a Law as the Law of England is, because by many
successions of ages it hath been fined and refined by an infinite number of grave
and learned men, and by long experience grown to such a perfection for the government of this Realm, . . . . No man (out of his own private reason) ought to be

wiser than the Law, which is the perfection of Reason (Coke, 1609: vol. I, bk. II,
sect. 138).1

This meant that the common law was profoundly democratic, drawing
its legitimacy from its claim to authenticity, in sharp contrast to canon,
civil, and other forms of law. The tradition of historical jurisprudence
also recognized the capacity of the common law to evolve over time. As
generations passed, rules would be refined to more perfectly capture the
essence of the community’s wisdom, or to reflect shifts in the collective
understanding of an ideal social order (Baker, 1990; Berman, 1994). Thus
by the end of the eighteenth century, the public functions of the common
law were understood to incorporate both a political theory of liberty, a
system of public order, and an understanding of history as progressive
improvement.
1

Nearly three centuries later, when Oliver Wendell Holmes, Jr., said that “the life of the
law has not been logic: it has been experience,” he was speaking within the tradition of
historical jurisprudence that Coke had articulated in 1609 (Holmes, 1881: 5).