Onward Spirit of the Age

Some historians, especially Morton J. Horwitz, have argued that U.S. law was transformed during these years, and that this transformation served the wealthy by indirectly subsidizing through new common law doctrines the costs of economic expansion. The courts became politicized instruments of economic progress whose benefits spilled over to only a small portion of the population. There is no doubt that the nation's infatuation with economic progress infected many judges as well as legislators. "The onward spirit of the age," wrote a Kentucky appellate judge in 1839, "must have its way. The law is made for the times, and will be made or modified by them." ⁶⁰ The law had become, another judge concluded, "a practical system, adapted to the condition and business of society," and "suit[ed to] the local conditions and exigencies of every people." ⁶¹ The legal culture certainly adapted to social change, and judges (and legislators also) played a vital role.

Yet Horwitz's argument seems overdrawn in two ways. First, the judiciary certainly facilitated economic development through legal instrumentalism, but it clung to the idea that the public enjoyed certain rights that it was required to protect. Vested rights declined in importance as the new notion of public rights and popular authority over the judiciary increased, but judges continued in their historic role of protecting individual rights. Even in cases involving labor, the judiciary accepted that unionization was not a criminal activity.

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Second, Horwitz underestimates the extent to which the idea of the rule of law had penetrated into American culture, as the experience of immigrants on the Overland Trail from St. Louis to the Pacific Coast in the 1840s and 1850s reveals. Although the immigrants were beyond the reach of any legal authority during their journey, they behaved in ways that underscored their law-abiding nature. When circumstances forced the dissolution of a company of sojourners, they resolved the issue by cutting their wagon into parts, each part going to an individual in the amount of the share he or she had in the enterprise. Far from being violently lawless, the immigrants displayed a remarkable degree of equanimity in settling disputes. By respect for "their neighbor and their neighbor's property they were, more often than not, adhering to a morality of law." ⁶²

Judicial power steadily expanded during these years and its growth had profound consequences for U.S. law. By the time of the Civil War, federal and state courts had reduced the lawfinding role of the jury in civil cases, fashioned a distinctive American common law that included a federal common law of commerce, established the principle of judicial review, and (as a consequence of doing all of these) emerged as economic policy-making institutions. In this regard, Horwitz is right in concluding that economic growth was hastened by making formal legal concern with morality and equity seem subversive to the rule of law itself. Similar developments also shaped the nineteenth-century law of crime and personal status.

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7
Race and the Nineteenth-Century Law of Personal Status

Racism ran like a fault line through the nineteenth-century United States, appearing in constitutions, legislative enactments, and common law proceedings. The legal status of nonwhites had a long and convulsed history as nineteenth-century white Americans struggled to reconcile a professed national commitment to equality before the law with a fear of cheap nonwhite labor and strange cultures. The relative legal positions of blacks, native Americans, and the Chinese differed, but one common theme gave unity to the law of personal status where race was involved: the assumption of white racial and cultural superiority.

The Law of Slavery

The antebellum law of slavery established a system of both labor and racial control. After the American Revolution that system operated almost exclusively in the southern states, although vestiges of it persisted in the North until the 1830s. In the North the absence of a compelling economic need and the libertarian ideology of the American Revolution extinguished the peculiar institution. Beginning with Pennsylvania in 1780, the northern states provided for the gradual legal abolition of slavery. Even in the South, where the number of slaves was greater and where their role in the economy was more extensive, sentiments in favor of emancipation appeared. The North Carolina legislature, for example, passed laws in the eighteenth century that eased the way for slaveholders to free their human property.

Social and economic necessity eventually overrode these abolitionist sentiments. Southern whites lived in fear of the consequences of freeing the slave population. Thomas Jefferson, in his famous Notes on the State of Virginia ( 1781), objected to a

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proposal that called for the emancipation of all slaves born after a certain date. "Deep- rooted prejudices entertained by the whites; ten thousand recollections, by the blacks, of the injuries they have sustained," Jefferson wrote, "[and] the real distinctions which nature has made . . . will divide us into parties, and produce convulsions, which will probably never end but in the extermination of the one or the other race,"¹ While Jefferson (a symbol of liberty in the nineteenth century) believed in human freedom, he thought, like many southerners, that it was impossible and wrong to achieve a racially egalitarian society through the law.

Economic necessity also prompted white southerners to throw a wall of legal protection around the peculiar institution. In the years immediately following the Revolution, the South suffered through an economic depression. Prices of slaves dropped; abolitionist sentiments rose. The introduction of Eli Whitney's cotton gin in the 1790s reversed southern economic fortunes, making cotton and gang slave labor highly profitable. Humanitarian concerns faded; a powerful planter class, whose wealth depended on slavery, turned to the law to legitimate it. Slavery survived in the South "not as an act of brute power and not as a discredited social habit," but "by the cataloguing power, the rule-making capacity . . . of . . . the law." ² Southern lawyers and judges depersonalized the slave system, pulling on professional masks that obscured the slave's humanity and the master's moral responsibility.

A web of constitutional, common law, and statutory provisions framed the legal structure of slavery. The framers of the federal Constitution did not officially recognize slavery; the words slave and slavery nowhere appear in the document. Slavery nonetheless insinuated itself into the nation's new ruling document through North-South compromises struck in Philadelphia. James Madison believed that these compromises were so important that the Constitution would never have been agreed to without them. In total, the framers took into account the slaveholder interests in eight provisions.

Three of these provisions were of particular importance, and their inclusion set a pattern followed until the Civil War in which sectional accommodation depended on a delicate balancing of constitutional authority. The first was the fugitive slave clause in Article IV, which declared that persons held to service or labor under the laws of a state had to be returned to the person claiming that service. The second was a nonamendable denial of congressional power to prohibit the slave trade for a twenty-year period. The third was the three-fifths clause in Article I, which included slaves in the reckoning of population for the purposes of representation and direct taxation.

The silence of the Constitution on slavery affirmed the framers' view that it was a local rather than a national institution. This position had strong support in the English common law. The leading case was Somerset v. Stewart ( 1772), decided by Lord Mansfield. A slave brought to England by his master had escaped, but was recaptured. Antislavery activists then sought a writ of habeas corpus demanding the slave's release on the grounds that, because England had no law of slavery, Somerset was free. Mansfield agreed with the abolitionists, freeing Somerset with the observation that slavery was "so odious, that nothing can be suffered to support it but positive law." ³ The Somerset decision promptly passed into U.S. law, where it shaped the operation of the federal system and left slavery vulnerable to legal challenge. Slavery in the United States resulted directly from state, not federal, statutory law. It either existed by local, positive law, or it did not exist at all.

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Date: 2015-01-29; view: 848