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19th-Century Legal History before the Civil War Kristopher Nelson - 2/3/2011

Saturday, February 18, 12


Some Legal Background ✤

What is law?

Common Law vs. Civil Law ✤

Reception of English law in the colonies

The Constitution (1789) ✤

State vs. federal

3 branches of government ✤

Role of the judiciary

Saturday, February 18, 12


The Modernizing of America ✤

No police.

Mail largest federal employer.

Regulations at city, state level. Little federal power. No FDA, no Social Security, no Medicare/Medicaid.

Every corporation required a specific legislative act.

Work was in the home. Little or no wage labor. Agricultural society.

Slavery core of Southern economy.

Free blacks could usually vote as citizens, if they met state property requirements.

Saturday, February 18, 12

Newspapers and the mail efficient, but relatively slow, means of communication.

Country mostly exists along Eastern coast.


Middle of the 19th Century ✤

By middle of century, federal commissioners of Fugitive Slave Act largest group of federal employees. ✤

What does this say about Southern “states’ rights” advocates?

African-Americans no longer considered national citizens, and could not even sue in federal court (Dred Scott)

The telegraph and railroads were revolutionizing transportation and communication.

The Louisiana Purchase and other moves extended the country westward.

Saturday, February 18, 12


End of Century ✤

By end of century, modern police forces emerge.

The federal government is supreme over the states--at least in certain areas.

Almost all of the Bill of Rights have been “incorporated” to apply to the states.

Corporations have “perfected” the capitalist form, and wage labor in factories is common. ✤

Monopolies gain power, especially via railroads, steel, and telecommunications.

African-Americans now protected by 14th, 15th, and 16th Amendments. ✤

But Plessy v. Ferguson says “separate but equal” is OK.

Saturday, February 18, 12

The United States now extends from coast to coast (and beyond).


Tort Law and Business ✤

Brown v. Kendall (1850) ✤

First use of “reasonable person” standard and “contributory negligence”

Beyond the case itself (an injury at a dog fight), the case speaks to the growing number of dangerous situations in which people could be hurt: railroads and factories, especially

Saturday, February 18, 12

Courts balanced need to protect individuals (remember, there was no safety net) with the important goal of furthering progress and industry.


Farwell v. Boston & W. Railroad (1842) ✤

Worker’s hand crushed by train because another worker made a mistake.

No social safety net. No private insurance. But everyone faced a cruel world.

Falwell sued--normally, employer liable for actions of agents/employees.

Accidents happen to everyone.

And we wouldn’t want to get in the way of progress and productive work...

But it was another employee...

Insulated employers from many claims for injury by employees

Saturday, February 18, 12


Federal vs. State Power ✤

Federalists (John Adams) ✤

Strong federal union, supreme over states

Judiciary would check excesses of majority rule

Jeffersonian Republicans (Thomas Jefferson) ✤

Wanted weak judiciary and strong state power

Saturday, February 18, 12


A Powerful Judiciary ✤

“It is emphatically the province and duty of the judicial department to say what the law is.” John Marshall, Marbury v. Madison (1803)

Marshall established the strong, independent judiciary that we know today, one capable of serving as a full 3rd branch of government.

Saturday, February 18, 12

The Constitution gives Congress the authority to pass all laws “necessary and proper” for executing its constitutional powers, and that those words should be construed broadly, in a practical spirit. Marshall rejected Jefferson's view that the Union was a compact of sovereign states, any one of which could substitute its own constitutional views for those of Congress.


Andrew Jackson & State Power ✤

Cherokee Indians case, Worcester v. Georgia (1832), Marshall infuriated Jackson by insisting that Georgia laws that purported to seize Cherokee lands on which gold had been found violated federal treaties.

Jackson: “John Marshall has made his decision, now let him enforce it.” Both Georgia and Jackson simply ignored the decision.

Saturday, February 18, 12

But also in 1832, when South Carolina declared that it had the power to nullify federal laws with which it disagreed, Jackson at least temporarily embraced Marshall’s vision of judicial authority, issuing a proclamation of the Supreme Court's ultimate power to decide constitutional questions and emphasizing that its decisions had to be obeyed.


Bills of Rights ✤

Only the First Amendment-freedom of press and religion-explicitly limited to federal Congress

But in Barron v. Baltimore (1833), the Supreme Court ruled that none of the rights in the Bill of Rights apply to the states

Saturday, February 18, 12

Overruled by the Fourteenth Amendment after the Civil War--though not fully implemented by the Supreme Court until the 1920s

Up to state constitutions to protect rights of citizens from state actors


“Political Questions” ✤

The doctrine of sidestepping issues as “political questions” has often served the court--but not always. ✤

Dred Scott (1857), Bush v. Gore (2000)

Saturday, February 18, 12


Dred Scott (1857) ✤

A slave (Dred Scott) lived in free Western territories (Missouri Compromise)

After death of master, sued for freedom in Missouri because of having lived in free territories

Missouri Supreme Court said “no,” must resist attempts like this to “overthrow ... our government”

Saturday, February 18, 12

Pro-slavery chief justice Roger Taney wrote opinion that supported Missouri, denied Scott’s status as free, and made African-Americans noncitizens.

Considered too partisan, and dissent attacked

Ended up contributing to, not preventing, Civil War


19th Century Legal History Before the Civil War