This page intentionally left blank 0521824621pre 521 824621 October 10, 2003 8:39 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 i 0521824621pre 521 824621 October 10, 2003 For my parents ii 8:39 0521824621pre 521 824621 October 10, 2003 8:39 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 Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge cb2 2ru, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521824620 © Howard Schweber 2004 This publication is in copyright Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press First published in print format 2004 isbn-13 isbn-10 978-0-511-16513-9 eBook (EBL) 0-511-16513-7 eBook (EBL) isbn-13 isbn-10 978-0-521-82462-0 hardback 0-521-82462-1 hardback Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate 0521824621pre 521 824621 October 10, 2003 8:39 Contents Acknowledgments page vii Introduction North and South Illinois: “We Were Determined to Have a Rail-Road” 13 44 “The Memory of Man Runneth Not to the Contrary”: Cases Involving Damage to Property 63 “Intelligent Beings”: Cases Involving Injuries to Persons The North: Ohio, Vermont, and New York Virginia through the 1850s: The Last Days of Planter Rule 90 118 147 The Common Law of Antebellum Virginia: The Preservation of Status Virginia’s Version of American Common Law: Old Wine in New Bottles 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 v 0521824621pre 521 824621 October 10, 2003 vi 8:39 0521824621pre 521 824621 October 10, 2003 8:39 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 0521824621pre viii 521 824621 October 10, 2003 8:39 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 ... blank 0521824621pre 521 824621 October 10, 2003 8:39 The Creation of American Common Law, 1850 1880 Technology, Politics, and the Construction of Citizenship This book is a comparative study of American. .. ii 8:39 0521824621pre 521 824621 October 10, 2003 8:39 The Creation of American Common Law, 1850 1880 Technology, Politics, and the Construction of Citizenship HOWARD SCHWEBER University of Wisconsin–Madison... 9:35 The Creation of American Common Law, 1850 1880 the common law were not separate from the values of competing political cultures, they were their wellsprings The comparative study of the development