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独家:剑桥美国法律史 二 |
作者:石家庄国际贸易律师编辑
出处:法律顾问网·涉外www.flguwen.com
时间:2010-11-19 16:12:00 |
the cambridge history of law in america volume ii The Long Nineteenth Century (1789–1920) Law stands at the center of modern American life. Since the 1950s, American historians have produced an extraordinarily rich and diverse literature that has vastly expanded our knowledge of this familiar and vital yet complex and multifaceted phenomenon. But few attempts have been made to take full account of law’s American history. The Cambridge History of Law in America has been designed for just this purpose. In three volumes we put on display all the intellectual vitality and variety of contemporary American legal history.We present as comprehensive and authoritative an account as possible of the present understanding and range of interpretation of the history of American law. We suggest where future research may lead. In the long century after 1789 we see the crystallization and, after the Civil War, the reinvention of a distinctively American state system – federal, regional and local; we see the appearance of systematic legal education, the spread of the legal profession, and the growing density of legal institutions. Overall, we learn that in America law becomes a technique of first resort wherever human activity, in all shapes and sizes, meets up with the desire to organize it: the reception and distribution of migrant populations; the expulsion and transfer of indigenous peoples; the structure of social life; the liberation of slaves and the confinement of freed people; and the great churning engines of continental expansion, urban growth, capitalist innovation, industrialization.We see how law intertwines with religion, how it becomes ingrained in popular culture, and how it intersects with the semi-separate world of American militarism and with the “outside” world of other nations. The Cambridge History of Law in America has been made possible by the generous support of the American Bar Foundation. Volumes I and III cover the history of law in America, respectively, from the first moments of English colonizing through the creation and stabilization of the republic; and from the 1920s until the early twenty-first century. Michael Grossberg is the Sally M. Reahard Professor of History and a Professor of Law at Indiana University. His research focuses on the relationship between law and social change, particularly the intersection of law and the family. Christopher Tomlins is Senior Research Fellow at the American Bar Foundation in Chicago. His research encompasses the relationship among labor, colonization, and law in early America; the conceptual history of police in Anglo-American law and politics; and the place of historical materialism in legal theory. Cambridge Histories Online © Cambridge University Press, 2008 Cambridge Histories Online © Cambridge University Press, 2008 the cambridge history of law in america volume ii The Long Nineteenth Century (1789–1920) Edited by MICHAEL GROSSBERG Indiana University CHRISTOPHER TOMLINS The American Bar Foundation, Chicago Cambridge Histories Online © Cambridge University Press, 2008 cambridge university press Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, S˜ao Paulo, Delhi Cambridge University Press 32 Avenue of the Americas, New York, ny 10013-2473, usa www.cambridge.org Information on this title: www.cambridge.org/9780521803069 c Cambridge University Press 2008 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2008 Printed in the United States of America A catalog record for this publication is available from the British Library. Library of Congress Cataloging in Publication Data The Cambridge history of law in America / edited by Michael Grossberg, Christopher Tomlins. p. cm. Includes bibliographical references and index. isbn 978-0-521-80306-9 (hardback) 1. Law – United States – History. I. Grossberg, Michael, 1950– II. Tomlins, Christopher L., 1951– III. Title. kf352.c36 2007 349.73–dc22 2007017606 isbn 978-0-521-80306-9 hardback Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party Internet Web sites referred to in this publication and does not guarantee that any content on such Web sites is, or will remain, accurate or appropriate. Cambridge Histories Online © Cambridge University Press, 2008 contents Editors’ Preface page vii 1 Law and the American State, from the Revolution to the Civil War: Institutional Growth and Structural Change 1 mark r. wilson 2 Legal Education and Legal Thought, 1790–1920 36 hugh c. macgill and r. kent newmyer 3 The Legal Profession: From the Revolution to the Civil War 68 alfred s. konefsky 4 The Courts, 1790–1920 106 kermit l. hall 5 Criminal Justice in the United States, 1790–1920: A Government of Laws or Men? 133 elizabeth dale 6 Citizenship and Immigration Law, 1800–1924: Resolutions of Membership and Territory 168 kunal m. parker 7 Federal Policy, Western Movement, and Consequences for Indigenous People, 1790–1920 204 david e. wilkins 8 Marriage and Domestic Relations 245 norma basch 9 Slavery, Anti-Slavery, and the Coming of the Civil War 280 ariela gross 10 The Civil War and Reconstruction 313 laura f. edwards v Cambridge Histories Online © Cambridge University Press, 2008 vi Contents 11 Law, Personhood, and Citizenship in the Long Nineteenth Century: The Borders of Belonging 345 barbara young welke 12 Law in Popular Culture, 1790–1920: The People and the Law 387 nan goodman 13 Law and Religion, 1790–1920 417 sarah barringer gordon 14 Legal Innovation and Market Capitalism, 1790–1920 449 tony a. freyer 15 Innovations in Law and Technology, 1790–1920 483 b. zorina khan 16 The Laws of Industrial Organization, 1870–1920 531 karen orren 17 The Military in American Legal History 568 jonathan lurie 18 The United States and International Affairs, 1789–1919 604 eileen p. scully 19 Politics, State-Building, and the Courts, 1870–1920 643 william e. forbath Bibliographic Essays 697 Notes on Contributors 821 Index 823 Cambridge Histories Online © Cambridge University Press, 2008 editors’ preface In February 1776, declaiming against the oppressive and absolute rule of “the Royal Brute of Britain,” the revolutionary pamphleteer Tom Paine announced to the world that “so far as we approve of monarchy . . . in America the law is king”! Paine’s declaration of Americans’ “common sense” of the matter turned out to be an accurate forecast of the authority the legal order would amass in the revolutionary republic. Indeed, Paine’s own fiery call to action was one of the stimuli that would help his prediction come true. We know ourselves that what he claimed for law then mostly remains true now. Yet, we should note, Paine’s claim was not simply prophecy; it made sense in good part because of foundations already laid. Long before 1776, law and legal institutions had gained a place of some prominence in the British American colonies. The power and position of law, in other words, are apparent throughout American history, from its earliest moments. The three volumes of The Cambridge History of Law in America explain why Paine’s synoptic insight should be understood as both an eloquent foretelling of what would be and an accurate summation of what already was. The Cambridge History of Law in America belongs to a long and proud scholarly tradition. In March 1896, at the instigation of FrederickWilliam Maitland, Downing Professor of the Laws of England at Cambridge University, and of Henry Jackson, tutor in Greek at Trinity College, the syndics of Cambridge University Press invited the University’s Regius Professor of Modern History, Lord John Dalberg Acton, to undertake “the general direction of a History of theWorld.” Six months later Acton returned with a plan for a (somewhat) more restrained endeavor, an account of Europe and the United States from The Renaissance to The Latest Age. Thus was born The Cambridge Modern History. Acton’s plan described a collaborative, collectively written multivolume history. Under general editorial guidance, each volume would be divided among “specially qualified writers” primed to present extensive and vii Cambridge Histories Online © Cambridge University Press, 2008 viii Editors’ Preface authoritative accounts of their subjects.1 They were to imagine themselves writing less for other professional historians than for a more general audience of “students of history” – anyone, that is, who sought an authoritative, thoughtful, and sophisticated assessment of a particular historical subject or issue. Acton envisioned a history largely clean of the professional apparatus of reference and citation – texts that would demonstrate the “highest pitch of knowledge without the display,” reliant for their authority on the expertise of the authors chosen to write them. And although it was intended that the History be the most complete general statement of historical knowledge available, and to that extent definitive, Acton was not interested in simply reproducing (and thus by implication freezing) what was known. He desired that his authors approach the task critically, strive for originality in their research, and take it on themselves to revise and improve the knowledge they encountered.2 Acton did not live to see even the first volume in print, but between 1902 and 1911 The Cambridge Modern History appeared in twelve substantial volumes under the editorial direction of Adolphus Ward and Stanley Leathes. The History quickly found a broad audience – the first volume, The Renaissance, sold out in a month. Other Cambridge histories soon followed: The Cambridge History of English Literature, which began to appear under Ward’s editorship in 1907; The Cambridge Medieval History (1911–36); The Cambridge History of American Literature (1917–21); The Cambridge Ancient History (1923–39); The Cambridge History of the British Empire (1929–67); The Cambridge History of India (1922–60), and more. All told, close to a hundred Cambridge histories have been published. More than fifty are currently in print. Cambridge histories have justly become famous. They are to be found in the collections of libraries and individuals throughout the world. Acton’s plan for The Cambridge Modern History invoked certain essentials – an ideal of collective authorship and a commitment to make expertise accessible to a wider audience than simply other specialists. To these he added grander, programmatic touches. The History would be “an epic,” a “great argument” conveying “forward progress . . . upward growth.” And it would provide “chart and compass for the coming century.” Such ambitions are 1 When, early on, Acton ran into difficulties in recruiting authors for his intimidating project, Maitland gently suggested that “his omniscient lordship” simply write the whole thing himself. Acton (we note with some relief) demurred. There is humor here, but also principle. Collective authorship is a practice ingrained in the Cambridge histories from the beginning. 2 Our account of Acton’s plan and its realization gratefully relies throughout on Josef L. Altholz, “Lord Acton and the Plan of the Cambridge Modern History,” The Historical Journal, 39, no. 3 (September 1996), 723–36. Cambridge Histories Online © Cambridge University Press, 2008 Editors’ Preface ix characteristic of Acton’s moment – the later nineteenth century – when in Britain and Continental Europe history still claimed an educative mantle “of practical utility,” the means rather than science (or law) to equip both elites and ordinary citizens “to deal with the problems of their time.” It was a moment, also, when history’s practitioners could still imagine filling historical time with a consistent, standardized account – the product, to be sure, of many minds, but minds that thought enough alike to agree on an essential common purpose: “men acting together for no other object than the increase of accurate knowledge.” Here was history (accurate knowledge) as “the teacher and the guide that regulates public life,” the means by which “the recent past” would yield up “the key to present time.” Here as well, lest we too quickly dismiss the vision as na¨ıve or worse, was the shouldering of a certain responsibility. “We have to describe the ruling currents, to interpret the sovereign forces, that still govern and divide the world. There are, I suppose, at least a score of them, in politics, economics, philosophy and religion. . . . But if we carry history down to the last syllable of recorded time, and leave the reader at the point where study passes into action, we must explain to him the cause, and the growth, and the power of every great intellectual movement, and equip him for many encounters of life.” Acton’s model – a standard general history, a guiding light produced by and for an intellectually confident elite – could not survive the shattering effects of two world wars. It could not survive the democratization of higher education, the proliferation of historical scholarship, the constant emergence of new fields and subdisciplines, the eventual decentering of Europe and “the West.” When, amid the rubble and rationing of a hastily de-colonizing post–World War II Britain, Cambridge University Press’s syndics decided a revised version was required – a New Cambridge Modern History for a new day – their decision acknowledged how much the world had changed. The revised version bore them out. Gone was Acton’s deep faith in history’s authority and grandeur. The general editor, G. N. Clark, wrote, “Historians in our self-critical age are aware that there will not be general agreement with their conclusions, nor even with some of the premises which they regard as self-evident. They must be content to set out their own thought without reserve and to respect the differences which they cannot eradicate” – including, he might have added (but perhaps there was no need) the many fundamental differences that existed among historians themselves. Cambridge histories no longer aspired to create standardized accounts of the way things had been nor to use the past to pick the lock on the future. The differences in perspective and purpose that a less confident, more self-critical age had spawned were now the larger part of the picture. Yet the genre Acton helped found has now entered its second century. It still bears, in some fashion, his imprint. The reason it has survived, indeed Cambridge Histories Online © Cambridge University Press, 2008 x Editors’ Preface prospered, has less to do with some sense of overall common purpose than the more modest but nevertheless essential precept of continued adherence to certain core principles of design simply because they have worked: individual scholars charged to synthesize the broad sweep of current knowledge of a particular topic, but also free to present an original interpretation aimed at encouraging both reflection and further scholarship, and an overall architecture that encourages new understandings of an entire subject or area of historical scholarship. Neither encyclopedias nor compilations, textbooks nor works of reference, Cambridge histories have become something quite unique – each an avowedly collective endeavor that offers the single best point of entry to the wide range of an historical subject, topic, or field; each in overall conceptual design and substance intent not simply on defining its field’s development to date but on pushing it forward with new ideas. Critique and originality, revision and improvement of knowledge – all remain germane. Readers will find that The Cambridge History of Law in America adheres to these core goals. Of course, like other editors we have our own particular ambitions. And so the three volumes of this Cambridge history have been designed to present to full advantage the intellectual vitality and variety of contemporary American legal history. Necessarily then – and inevitably – The Cambridge History of Law in America dwells on areas of concern and interpretive debates that preoccupy the current generation of legal historians. We do not ignore our predecessors.3 Nor, however, do we attempt in the body of the History to chart the development of the field over their time and ours in any great detail. Readers will find a more substantial accounting of that development in the bibliographic essays that accompany each chapter, but as editors we have conceived our job to be to facilitate the presentation of as comprehensive and authoritative a rendition of the present understanding of the history of American law as possible and to suggest where future research may lead. Cambridge histories always define their audiences widely; ours is no exception. One part of our intended audience is scholarly, but hardly confined to other legal historians; they are already the best equipped to know something of what is retailed here. So to an important extent we try to look past legal historians to historians at large. We also look beyond history to scholars across the broad sweep of law, the humanities, and the social sciences – indeed to any scholar who may find a turn to law’s history useful (or simply diverting) in answering questions about law and society in America. 3 See, for example, the graceful retrieval and reexamination of themes from the “imperial school” of American colonial historians undertaken by Mary Sarah Bilder in Volume I, Chapter 3. Cambridge Histories Online © Cambridge University Press, 2008 Editors’ Preface xi A second part of our audience is the legal profession. Lawyers and judges experience in their professional lives something of a practical encounter with the past, although the encounter may not be one they would recognize as “historical.” As John Reid has written, “The lawyer and the historian have in common the fact that they go to the past for evidence, but there the similarity largely ends.” Here lawyers and judges can discover for themselves what historians do with evidence. In the process, they will also discover that not inconsiderable attention has been paid to their own lives and experiences. Legal historians have always known how important legal thought and legal education are in the formation of the professional world of the law, and both feature prominently in this History. Here the profession encounters the history of its activities and of the medium it inhabits from a standpoint outside itself. The third segment of our intended audience is the general public. Our purposes in this encounter are not Acton’s.We do not present this History as the means to educate a citizenry to deal with the problems of the moment. (Indeed, it is worth noting that in America law appropriated that role to itself from the earliest days of the republic.) Like G. N. Clark, today’s historians live in self-critical times and have lower expectations than Lord Acton of what historical practice might achieve. That said, readers will find that this History touches on many past attempts to use law to “deal with” many past problems: in the America where law is king, it has been law’s fate to be so employed. And if their accounts leave some of our authors critical in their analysis of outcomes or simply rueful in recounting the hubris (or worse) of the attempts, that in itself can be counted an education of sorts. Moreover, as Volume III’s chapters show repeatedly, Americans continue to turn to law as their key medium of private problem solving and public policy formation and implementation, and on an expanding – global – stage. In that light, there is perhaps something for us to learn from Acton’s acknowledgment that the scholar-expert should not abandon the reader “at the point where study passes into action.” We can at the very least offer some reflection on what an encounter with the past might bring by way of advice to the “many encounters of life” lying ahead. In reaching all three of our intended audiences, we are greatly assisted by the pronounced tendency to “demystify” and diversify its subject that has characterized American legal history for a half-century. To some, the field’s very title – “legal history” – will conjure merely an arcane preoccupation with obscure terminologies and baffling texts, the doctrines and practices of old (hence defunct) law, of no obvious utility to the outsider whether historian or social scientist or practicing lawyer or just plain citizen. No doubt, legal history has at times given grounds to suppose that such a view of the discipline is generally warranted. But what is interesting Cambridge Histories Online © Cambridge University Press, 2008 xii Editors’ Preface in American legal history as currently practiced is just how inappropriate that characterization seems. To read the encomia that have accumulated over the years, one might suppose that the demise of legal history’s obscurity was the single-handed achievement of one man, JamesWillard Hurst, who on his death in 1997 was described in the New York Times as “the dean of American legal historians.” Indeed, Hurst himself occasionally suggested the same thing; it was he who came up with the aphorism “snakes in Ireland” to describe legal history in America at the time he began working in the field in the 1930s. Though not an immodest man, it seems clear whom he cast as St. Patrick. Yet the Times’ description was merited. Hurst’s lifework – the unpacking of the changing roles of American law, market, and state from the early nineteenth to the early twentieth centuries – set the agenda of American legal historians from the 1950s well into the 1980s. That agenda was a liberation from narrower and more formalistic preoccupations, largely with the remote origins of contemporary legal doctrine or with the foundations of American constitutionalism, that had characterized the field, such as it was, earlier in the century. Most important, Hurst’s work displayed some recognition of the multidimensionality of law in society – as instrument, the hallmark with which he is most associated, but also as value and as power. Hurst, in short, brought legal history into a continuing dialogue with modernity, capitalism, and the liberal state, a dialogue whose rich dividends are obvious in this History. Lawyers have sometimes asked aggressively anachronistic questions of history, like – to use an apocryphal example of Robert Gordon’s – “Did the framers of the Constitution confer on the federal government the power to construct an interstate highway system?” Hurstian legal history did not indulge such questions. But Hurstians did demonstrate a gentler anachronism in their restriction of the scope of the subject and their interpretation of it. Famously, for Hurst, American legal history did not begin until the nineteenth century. And when it did begin it showed a certain consistency in cause and effect. As Kermit Hall summarized the view in 1989, “Our legal history reflects back to us generations of pragmatic decision making rather than a quest for ideological purity and consistency. Personal and group interests have always ordered the course of legal development; instrumentalism has been the way of the law.”4 The Hurstian determination to demystify law occasionally reduced it to transparency – a dependent variable of society and economy (particularly economy) tied functionally to social and economic change. 4 Kermit L. Hall, The Magic Mirror: Law in American History (New York, 1989), 335. Cambridge Histories Online © Cambridge University Press, 2008 Editors’ Preface xiii As a paradigm for the field, Hurstian legal history long since surrendered its dominance. What has replaced it? In two words, astonishing variety. Legal historians are aware that one cannot talk or write about economic or social or political or intellectual history, or indeed much of any kind of history, without immediately entering into realms of definition, prohibition, understanding, practice, and behavior that must imply law to have meaning. Try talking about property in any of those contexts, for example, without implying law. Today’s legal historians are deeply engaged across the full range of historical investigation in demonstrating the inextricable salience of law in human affairs. As important, the interests of American historians at large have never been more overtly legal in their implications than now. To take just four popular areas of inquiry in American history – citizenship and civic personality, identity, spatiality, and the etiology of social hierarchy and subordination – it is simply impossible to imagine how one could approach any of these areas historically without engaging with law, legal ideology, legal institutions, legal practices, and legal discourse. Legal historians have been and remain deeply engaged with and influenced by social history, and as that field has drifted closer and closer to cultural history and the historical construction of identity so legal history has moved with it. The interpretive salience of race and ethnicity, of gender and class is as strong in contemporary legal historical practice as in any other realm of history. Add to that the growing influence of legal pluralism in legal history – the migration of the field from a focus on “the law” to a focus on the conditions of existence of “legality” and the competition of many alternative “legalities” – and one finds oneself at work in a field of immense opportunity and few dogmas. “Astonishing variety” demonstrates vitality, but also suggests the benefits of a judicious collective effort at authoritative summation. The field has developed at an extraordinary rate since the early 1970s, but offers no work that could claim to approach the full range of our understanding of the American legal past.5 The Cambridge History of Law in America addresses both 5 The field has two valuable single-author surveys: Lawrence M. Friedman’s A History of American Law (New York, 1973; 3rd ed. 2005) and Kermit Hall’s The Magic Mirror. Neither approaches the range of what is on display here. The field also boasts volumes of cases and commentary, prepared according to the law teaching “case book” model, such as Stephen B. Presser and Jamil S. Zainaldin, Law and Jurisprudence in American History: Cases and Materials (St. Paul, MN, 1980; 6th ed. 2006) and Kermit Hall, et al., American Legal History, Cases and Materials (New York, 3rd ed., 2003). There also exist edited volumes of commentary and materials that focus on broad subject areas within the discipline of legal history; a preponderance deal with constitutional law, such as Lawrence M. Friedman and Harry N. Scheiber, eds., American Law and the Constitutional Order: Historical Perspectives (Cambridge, MA, 1978; enlarged ed. 1988). Valuable in Cambridge Histories Online © Cambridge University Press, 2008 xiv Editors’ Preface the vitality of variety and its organizational challenge. Individually, each chapter in each volume is a comprehensive interrogation of a key issue in a particular period of American legal history. Each is intended to extend the substantive and interpretative boundaries of our knowledge of that issue. The topics they broach range widely – from the design of British colonizing to the design of the successor republic and of its successive nineteenthand twentieth-century reincarnations; from legal communications within empires to communications among nation-states within international law to a sociology of the “legalization” that enwraps contemporary globalism; from changes in legal doctrine to litigation trend assessments; from clashes over law and religion to the intersection of law and popular culture; from the movement of peoples to the production of subalternship among people (the indigenous, slaves, dependents of all kinds); and from the discourse of law to the discourse of rights. Chapters also deal with developments in specific areas of law and of the legal system – crime and criminal justice, economic and commercial regulation, immigration and citizenship, technology and environment, military law, family law, welfare law, public health and medicine, and antitrust.6 Individual chapters illustrate the dynamism and immense breadth of American legal history. Collectively, they neither exhaust its substance nor impose a new interpretive regimen on the field. Quite the contrary, The Cambridge History of Law in America intentionally calls forth the broad array of methods and arguments that legal historians have developed. The contents of each volume demonstrate not just that expansion of subject and method is common to every period of American legal history but also that as the long-ascendant socio-legal perspective has given way to an increasing diversity of analytical approaches, new interpretive opportunities are rife everywhere. Note the influence of regionalism in Volume I and of institutionalism in Volume II. Note the attention paid in Volume III not only to race and gender but also to sexuality. The History shows how legal history their own right, such volumes are intended as specific-purpose teaching tools and do not purport to be comprehensive. Finally, there are, of course, particular monographic works that have proven widely influential for their conceptual acuity, or their capacity to set a completely new tone in the way the field at large is interpreted. The most influential have been such studies as James Willard Hurst, Law and the Conditions of Freedom in the Nineteenth-Century United States (Madison, WI, 1956), and Morton J. Horwitz, The Transformation of American Law, 1780–1860 (Cambridge, MA, 1977). 6 Following the tradition of Cambridge histories, each chapter includes only such footnotes as the author deems necessary to document essential (largely primary) sources. In place of the dense display of citations beloved of scholarly discourse that Acton’s aesthetic discouraged, each author has written a bibliographic essay that provides a summary of his or her sources and a guide to scholarly work on the subject. Cambridge Histories Online © Cambridge University Press, 2008 Editors’ Preface xv has entered dialogue with the full array of “histories” pursued within the academy – political, intellectual, social, cultural, economic, business, diplomatic, and military – and with their techniques. The Cambridge History of Law in America is more than the sum of its parts. The History’s conceptual design challenges existing understandings of the field.We divide the American legal past into three distinct eras and devote a complete volume to each one: first Early America, then The Long Nineteenth Century, and last The Twentieth Century and After. The first volume, Early America, examines the era from the late sixteenth century through the early nineteenth – from the beginnings of European settlement through the creation and stabilization of the American republic. The second volume, The Long Nineteenth Century, begins with the appearance of the United States in the constituted form of a nation-state in 1789; it ends in 1920, in the immediate aftermath of World War I, with the world poised on the edge of the “American Century.” The final volume, The Twentieth Century and After, concentrates on that American century both at home and abroad and peers into the murk of the twenty-first century. Within each of these broad chronological divisions occurs a much more detailed subdivision that combines an appreciation of chronology with the necessities of topical specialization. Where appropriate, topics are revisited in successive volumes (crime and criminal justice, domestic relations law, legal thought, and legal education are all examples). Discussion of economic growth and change is ubiquitous, but we accord it no determinative priority. To facilitate comparisons and contrasts within and between eras, sequences of subjects have been arranged in similar order in each volume. Specific topics have been chosen with an eye to their historical significance and their social, institutional, and cultural coherence. They cannot be walled off from each other, so readers will notice substantive overlaps when more than one author fastens on the same issues, often to create distinct interpretations of them. History long since ceased to speak with one voice. In this History, readers are invited into a conversation. Readers will notice that our chronology creates overlaps at the margins of each era. They will also notice that some chapters focus on only particular decades within a specific era7 or span more than one era.8 All this is 7 Chronologically specific topics – the American Revolution and the creation of the republic in Volume I, the Civil War in Volume II, the New Deal era in Volume III – are treated as such. Chapters on the legal profession in Volumes II and III divide its development at the Civil War, as do those, in Volume II, on the state and on industrial organization. 8Volume II’s chapter on the military deals with both the nineteenth and twentieth centuries, as do Volume III’s chapters on agriculture and the state and on law and the environment. The latter chapter, indeed, also gestures toward the colonial period. Cambridge Histories Online © Cambridge University Press, 2008 xvi Editors’ Preface intentional. Historians construct history by placing subjects in relation to each other within the continuum of historical time. Historians manipulate time by creating periods to organize the placement of subjects. Thus, when historians say that a subject has been “historicized,” they mean it has been located in what they consider its appropriate historical-temporal context or period. Slicing and dicing time in this fashion is crucial to the historian’s objective of rendering past action coherent and comprehensible, but necessarily it has a certain arbitrariness. No matter how familiar – the colonial period, the Gilded Age, the Progressive period, and so forth – no historical period is a natural division: all are constructs. Hence we construct three “eras” in the interests of organizational coherence, but our overlaps and the distinct chronologies chosen by certain of our authors allow us to recognize different temporalities at work. That said, the tripartite division of these volumes is intended to provide a new overall conceptual schema for American legal history, one that is broad and accommodating but that locates legal history in the contours of American history at large. Maitland never forgot that, at bottom, just as religious history is history not theology, legal history is history not law. Notwithstanding law’s normative and prescriptive authority in “our” culture, it is a phenomenon for historical inquiry, not the source of an agenda. And so we take our cue, broadly, from American history. If it is anything, American history is the history of the colonization and settlement of the North American mainland, it is the history of the creation and expansion of an American nation-state, and it is the history of that state’s place in and influence on the world at large. The contents and the organization of The Cambridge History of Law in America speak to how law became king in this America and of the multitudinous empire of people and possibilities over which that king reigned. Thus we address ourselves to the endless ramifications, across more than four centuries, of the meaning of Tom Paine’s exclamation in 1776. The Cambridge History of Law in America could not have been produced without the support and commitment of the American Bar Foundation, Cambridge University Press, and our cadre of authors.We thank them all. The American Bar Foundation housed the project and, together with the Press, funded it. The Foundation was there at the creation: it helped initiate the project by sponsoring a two-day meeting of an ad hoc editorial consulting group in January 2000. Members of that group (Laura Edwards, Tony Freyer, Robert Gordon, Bruce H. Mann, William Novak, Stephen Siegel, Barbara Young Welke, and Victoria Saker Woeste) patiently debated the editors’ initial thoughts on the conceptual and intellectual direction that the History should follow and helped identify potential contributors. Since then, Cambridge Histories Online © Cambridge University Press, 2008 Editors’ Preface xvii the project has benefited from the support of two ABF directors, Bryant Garth and his successor Robert Nelson, and the sustained and enthusiastic interest of the Foundation’s Board of Directors during the tenure of four Board presidents: Jacqueline Allee, M. Peter Moser, the late Robert Hetlage, and David Tang.We owe a particular debt of gratitude to Robert MacCrate for his early support and encouragement. As all this suggests, the American Bar Foundation’s role in the production of The Cambridge History of Law in America has been of decisive importance. The part the Foundation has played underlines its standing as the preeminent research center for the study of law and society in the United States and its long tradition of support for the development of American legal history. Cambridge University Press has, of course, been central to the project throughout. We are grateful to the syndics for their encouragement and to Frank Smith and his staff in New York for their assistance and support. Frank first suggested the project in 1996. He continued to suggest it for three years until we finally succumbed. During the years the History has been in development, Frank has accumulated one responsibility after another at the Press. Once we rubbed shoulders with the Executive Editor for Social Sciences. Now we address our pleas to the Editorial Director for Academic Books. But Frank will always be a history editor at heart, and he has maintained a strong interest in this History, always available with sage advice as the project rolled relentlessly onward. He helped the editors understand the intellectual ambitions of a Cambridge history. Those who have had the privilege of working with Frank Smith will know how important his advice and friendship have been to us throughout. Finally, the editors want to thank the authors of the chapters in these volumes. A project like this is not to every author’s taste – some took to it more easily than others. But together the sixty authors who joined us to write the History have done a magnificent job, and we are deeply grateful to every one. From the beginning our goal was not only to recruit as participants those whom all would identify as leading figures of our field but also to include those who, we were confident, would be leading figures of its next generation.We are delighted that so many of each were willing. We acknowledge also those who were unable for one reason or another to see an initial commitment through to the end: their efforts, too, helped us define and establish the project. And obviously, we owe a particular debt to those others who came later to take the places of the fallen. To oversee a project in which so many people have at one time or another been involved has seemed on occasion like being the mayors of a village. People arrive and (much less frequently, thank goodness) depart. Those who settle in for the duration become a community of friends and neighbors. Over time, one learns much from one’s friends and neighbors about the joys Cambridge Histories Online © Cambridge University Press, 2008 xviii Editors’ Preface and vicissitudes of life. One learns who (and whose family) may be ailing, and who is well. One learns of hurts and difficulties; one revels in successes. And one may learn, as we did so sadly in August 2006, of an untimely death. Notwithstanding the demands of his immensely successful career in academic administration, our colleague Kermit Hall never laid down his historian’s pen and was an enthusiastic participant in this project. He died suddenly and unexpectedly. His contributions to the field have been great, and he is greatly missed. Throughout, the many authors in this project have responded courteously to our editorial advice. They have reacted with grace and occasional humor to our endless demands that they meet their deadlines. Sometimes they even sent their manuscripts too. Most important, they have striven to achieve what we asked of them – the general goals of a Cambridge history and the specific goals of this history, as we have described them in this preface. Their achievements are evident in the pages of each volume. In an individualistic intellectual culture, the scholarship on display here demonstrates the possibilities inherent in a collective intellectual enterprise. In the end, of course, the editors, not the authors, are responsible for the contents of these volumes. Yet, it is the authors who have given the History its meaning and significance. Michael Grossberg Christopher Tomlins Cambridge Histories Online © Cambridge University Press, 2008 1 law and the american state, from the revolution to the civil war: institutional growth and structural change mark r. wilson From Tocqueville in the 1830s to scholars in the twenty-first century, most observers have found the state in the antebellum American republic elusive and complex. As any student of American history knows, the new nation that emerged from the Revolutionary War was not ruled by uniformed national officials. In place of a king the United States had popular sovereignty and the law; instead of strong central authorities it had federalism and local autonomy; lacking administrative bureaucracy, it relied on democratic party politics. In the Constitution, the new nation wrote a blueprint for government that called for separation rather than conglomeration of powers. It would prove remarkably successful in endowing the American state with both flexibility and durability, as Madison and other founders had desired. The state in the early United States did not look like an entity approaching the Weberian ideal-type of the modern state: an organization capable of enforcing a successful monopoly of violence over a given territory, ruled through a legal-administrative order. But for all its apparent distinctiveness, the state in the early United States, no less than its counterparts in Europe and Asia, performed the fundamental tasks of any state: managing its population, economy, and territory. The history of how it did so suggests that the American state in the early nineteenth century was more substantial and energetic, especially at the national level, than many have suggested. As Tom Paine famously put it, the Revolution created a new America, in which law was king. But we should be wary of overemphasizing the importance of the law in early American governance.We should instead embrace a broad conception of the law, in which the Constitution, statute law, and judge-made law all figure as parts of a larger legal order that also included coercive law enforcement and administration. Certainly, we cannot understand the state in the early United States without considering the Constitution and the courts, as well as federalism and party politics. But these institutions did not alone comprehend the American state between the Revolution 1 Cambridge Histories Online © Cambridge University Press, 2008 2 Mark R. Wilson and the Civil War. Along with the structural characteristics that made it distinctive from a global perspective, the early American state – like other states – performed major administrative feats that required guns and even bureaucracy. Often overlooked by students of comparative politics, history, and law, these less exceptional dimensions of the early American state were crucial in the formation of the new nation and its survival through the Civil War. Generalizing about the early American state poses special challenges, but also promises significant rewards. As recent political theorists have emphasized, writing in general terms about any state tends to exaggerate its coherence. In the case of the United States in particular, any general discussion of “the state” must recognize the complexities induced by the occurrence of state action at three levels of governance: not just national, but state and local too. Here I attempt to avoid confusing these different levels of state authority by treating them as distinct subjects whose relationships and relative powers changed over time. Nevertheless, one should not be deterred from considering what broad conclusions one can reach by examining the general character of the work of public authorities (whether national, state, or local) as such. Complexity for its own sake does not get us very far. While necessarily crude, broader claims may be unusually fruitful when it comes to the state in the early United States, precisely because its complexity is already so well understood. Whereas the conventions of historical and social-scientific writing may have imbued many states with an artificial coherence, in the case of the early United States we face the opposite problem. That is, the early American state is understood to have been so exceptionally weak, decentralized, or otherwise unusual that it defies the conventions of analysis applied to contemporary European states. One finds this “exceptionalist” paradigm of American distinctiveness promoted assiduously after World War II, most obviously by Louis Hartz in The Liberal Tradition in America (1955). A more refined version of the argument was advanced by James Willard Hurst in his Law and the Conditions of Freedom in the Nineteenth-Century United States (1956). Hurst explained that the early United States was remarkable not for any “jealous limitation of the power of the state,” but rather because it was a new kind of state that worked in positive fashion to achieve “the release of individual creative energy.”1 Hurst comprehended Tocqueville’s most astute observations about the paradoxical capacity of liberal states to do more with less better than did Hartz, indeed better than many others since. But like Tocqueville, Hurst implied that the American state was abnormal. 1 James Willard Hurst, Law and the Conditions of Freedom in the Nineteenth-Century United States (Madison, 1956), 7. Cambridge Histories Online © Cambridge University Press, 2008 Law and the American State, from the Revolution to the Civil War 3 Decades after Hurst, more recent authorities on the early American state have broken much new ground, but mostly they still accept American distinctiveness. Above all, the decentralization of early U.S. political authority, described (and praised) at such great length by Tocqueville, continues to figure centrally. Before the late nineteenth century, the United States was a state of “courts and parties”: those two institutions alone served to coordinate a radically decentralized political and economic system. Some of the best new histories of the early American state have outdone Tocqueville in their assumptions about the hypersignificance of local governance. In the history of American political economy, meanwhile, the several states continue to figure as the central subjects, just as they did in the classic monographs on Pennsylvania and Massachusetts written by Hartz and the Handlins in the mid-twentieth century. The leading legal historian Lawrence Friedman summarized the message of a half-century of scholarship on state institutions and political economy in the antebellum United States as follows: “Nobody expected much out of the national government – or wanted much.” The national government “was like the brain of a dinosaur: an insignificant mass, of neurons inside a gigantic body.” The impotence of national authority and incoherence of state action in the United States through the Civil War era are part of a well-established story. But that does not make them correct. Here I take a different direction. In doing so, I build on the work of a handful of scholars – among them Richard R. John, Ira Katznelson, and Bartholomew Sparrow – whose research recommends reconsideration. In their effort to chart the dynamics of the complex American political system, I argue, students of the early American state have overlooked the most important single characteristic of the early United States: its astounding growth. In comparison with European states, the early American state was confronted with problems arising from unusually rapid demographic, economic, and territorial expansion. Between 1790 and 1870, the national population increased from 4 million people to 40 million. The economy grew roughly twice as fast: between 1820 and 1870 alone, national product increased by a factor of eight. Perhaps most remarkable of all, the territory over which the early American state presided expanded from 864,000 square miles in 1800 to nearly 3 million square miles in 1850. From a gaggle of colonies hugging the Eastern seaboard in 1776, by the time of the CivilWar – less than ninety years later – the United States had become the peer in population, economic output, and territorial reach of France, Britain, and Russia. The early American state was less top-heavy than those others. In 1860, when all three states had similar numbers of inhabitants, central state expenditures in Britain and France were roughly five times what they were in the United States. Nonetheless, along with its tremendous growth in Cambridge Histories Online © Cambridge University Press, 2008 4 Mark R. Wilson population, economy, and territory, the early United States saw a remarkable expansion of state institutions. By 1870, twenty-four new states had joined the original thirteen, and hundreds of new towns and counties had been created. National government had undergone significant expansion and specialization. By 1849, the original executive departments of State, War, and Treasury had been joined by three more cabinet-level departments: Navy, Post Office, and Interior. In Congress, a variety of specialized standing committees had appeared in both houses by the 1810s; the number of House members had tripled between the 1790s and the 1870s, from 102 to 292. In 1836, Congress reorganized the patent system by establishing a new Patent Office, which became an important arbiter of technological innovation. Even the federal judiciary, set in its structure for the most part in 1789, saw a newcomer by the end of this era: the Court of Claims, established in 1855 and empowered during the CivilWar. Institutional expansion allowed the early American state to manage its population, economy, and territory – the three fields of greatest concern to all modern states. Here I use these three related fields as the means to organize a multidimensional account of the early American state. My account confirms some long-established notions and extends – or challenges – others. For example, students of American history will not be surprised to learn that early American governmental institutions failed to deliver on the most radical and egalitarian promises of the Revolution. But what happens when we probe beyond the obvious racial and sexual inequalities of early America to consider matters of causation and chronology? In its symbolic and legal construction of the national population, the early American state deliberately segmented its population along a color line. Furthermore, state construction of whiteness and its cognates became more energetic over time. In the field of political economy, the pattern of chronological change was more complex. Here, a non-linear narrative, which considers the activities of various levels of American government, helps us reconcile a basic dispute among political and legal historians of the early United States. Both sides in this dispute have managed to assemble powerful evidence: on the one hand, of considerable state promotion and regulation; on the other, of impressive growth – not only in America, but around the Atlantic world – in capitalist enterprise. But we rely too heavily on evidence from the 1830s and early 1840s for broad characterizations of the development of the market economy during the whole antebellum era. If we consider more carefully the final years of the antebellum period and if we look beyond the various states to both local and national initiatives, we find that the oft-discussed trend toward private enterprise during the latter part of this era was actually quite weak. Cambridge Histories Online © Cambridge University Press, 2008 Law and the American State, from the Revolution to the Civil War 5 In the governance of population and economy, the national state shared the stage with the various states and localities. In the governance of territory, on the other hand, the national state – which contemporaries frequently called “the General Government,” if not “the Union” or simply “the United States” – was the leading player. It was the national state, through treaties and military operations, which claimed vast new territories during this period. And it was the national state that created and administered the laws and policies that transformed much of this territory into land. The country’s greatest landowner and realtor, the national state transformed the landscape and the lives of the millions of people who settled beyond the original thirteen states by extending the common law of property over the continent and creating administrative agencies necessary to divide vast spaces into manageable commodities. By the middle of the nineteenth century, territorial governance and consolidation stood as the early American state’s central accomplishment and central problem. That this field of governance touched the lives of the entire population, and not only a minority in the far West, became especially evident by the end of this period, when disastrous new territorial policies in the 1850s led directly to the Civil War. Taking fuller measure of the early American state leads us to an unexpected conclusion: that the early national state, dismissed by many observers then and since as extraordinarily weak and irrelevant, was in fact the most innovative and influential level of governance in the multitiered American political and legal order. Between 1861 and 1865, the national state extended its influence significantly, but this extension was built on an already considerable foundation. The emergence of a powerful national state in America did not occur during or after the Civil War, but before. I. POPULATION Historians and legal scholars lead us to consider the early American state’s management of its population in terms of two hypotheses. First, a variety of state institutions worked to individualize the populace; over time the state came to recognize and have a more direct relationship with the individual human beings residing in its territory, including those who lacked full citizenship rights. Second, the early American state increasingly sorted the population according to discriminatory racial categories, which simultaneously expanded the boundaries of a favored social class identified as white and increasingly denigrated those persons who fell outside the boundaries of this category. Any discussion of the early American state’s activities in the field of population may logically begin with a consideration of the Constitution and Cambridge Histories Online © Cambridge University Press, 2008 6 Mark R. Wilson the census. Although the racialization of the population had certainly been proceeding for decades in British North America before the Revolution, the language of the Constitution suggests that the infant American state was not yet devoted to full-blown white supremacy. The Constitution’s most direct sorting of the population is found in Article I, in which it describes the rules for determining the apportionment of the House. Here, the Constitution differentiates among three social categories: “free persons,” “Indians not taxed,” and “all other persons.” For apportionment purposes, as is well known, the number of people in the last of these categories – a euphemism for slaves – was multiplied by three-fifths; members of the second category were excluded altogether. The Constitution refers to neither sex nor color. Thus, while it certainly provides tacit recognition and even support for slavery, the basic blueprint for the new national state uses condition of servitude, rather than race, as a social sorting device. By contrast, the census, which should be understood as one of the institutions of the early American state with the greatest symbolic power, used the term “white” from the beginning. The first U.S. national census, required by the Constitution, was conducted in 1790, a decade before the first national censuses of Britain and France (although after the pioneering efforts of Sweden). It divided the population into “white,” “other free,” and “slave.” The white population was further divided into three categories: females, and males over and under the age of 16. By 1820, the census had dropped the adjective “other” for “colored.” In subsequent decades, increasingly complex census schedules would continue to divide the population according to the same handful of basic variables: color, sex, age, condition of servitude, and place of residence. In 1830, it began to enumerate persons described as deaf, dumb, and blind; in 1840, it counted “insane and idiots” as well. In 1850, the census added a new racial subcategory, “mulatto,” which was left to field enumerators to interpret. (In 1850, more than 11 percent of the people falling under the larger category of “colored” were placed in this new subcategory.) As sectional tensions increased, census regional and racial data were paraded for a variety of political purposes. When poorly designed 1840 census forms led enumerators in some Northern states to register hundreds of non-existent “insane and idiot” African Americans, some Southerners seized on the false data as evidence of the salutary effects of slavery. Another wrongheaded interpretive leap, which spoke to the increasing dedication to the idea of white supremacy within the boundaries of the state during this period, came from the census itself. In 1864, as he presented the final official population report from 1860, long-time census chief Joseph Kennedy hailed figures showing that the nation’s free white population had grown 38 percent over the preceding decade, in contrast to 22 percent growth Cambridge Histories Online © Cambridge University Press, 2008 Law and the American State, from the Revolution to the Civil War 7 among slaves and 12 percent for free blacks. Disregarding the inconvenient fact that the free black population was on a pace to double in size over the next century, Kennedy announced that the data indicated an ongoing “gradual extinction” of “the colored race.” Along with this apparently increasing emphasis on racial hierarchy and difference, the development of the census over time suggested a more general shift in the relationship between state and population in antebellum America, toward individualization. As we shall see, this was evident in the development of family law across the various states. At the census, the key innovation occurred during a massive expansion of data collection in 1850, when enumerators first recorded the names of individuals other than household heads. Pushing toward a new level of social knowledge, the census forged a direct relationship with named individuals, including women and children. Here, as elsewhere, the state’s willingness to have its relationship to persons mediated by a patriarchal or corporate head was declining. At the same time, there was necessarily a corresponding increase in bureaucratic capacity. While the 1840 census was processed inWashington by a clerical force of only about 20, the 1850 tally required 170 clerks. According to its leading historian, this made the Census Office, at its peak, “the largest centralized clerical operation of the federal government at the time.” There were no comparable operations in the private sector during this era. More important than its bureaucratic achievements was the symbolic work that the census did. Again, racial sorting had been going on throughout the colonial period (both in popular culture and in law); it was certainly not pioneered by the census or any other post-Revolutionary state institution. But through its administrative and legal institutions, the early American state encouraged the reproduction of a national social order in which racial hierarchies became more important over time, rather than less. Through the census and other legal and administrative institutions, the early American state encouraged its populace to think in terms of whiteness and non-whiteness in a way that the Constitution did not. While colonial developments made it likely that the new national state would continue to emphasize racial categories in the definition of its population, other available categories were eschewed. Most important among these was religion. Here, in contrast to its operation with regard to race, the symbolic power of early national state institutions was used against the entrenchment of poisonous social divisions. The census that so diligently classified according to sex and race avoided interrogation of religious identity, even in its detailed, individualized schedules of 1850. This need not have been the case. Before the Revolution, seven of the thirteen colonies had state-supported churches; in Europe, of course, established religion was the rule. But the immediate post-Revolutionary period proved one in which Cambridge Histories Online © Cambridge University Press, 2008 8 Mark R. Wilson disestablishment was especially attractive. Many American leaders were true Enlightenment men whose qualifications as Christians were dubious. Many members of fast-growing non-established churches, such as Baptists and Presbyterians, found the end of established Congregationalist and Anglican churches an attractive prospect. Virginia led the way with a 1786 law “for Establishing Religious Freedom” that banned government assistance to any church and established a policy of tolerance toward non-Christians. Soon after, the Constitution, which made no reference to a deity at all, proscribed religious tests for federal officeholders; the First Amendment, of course, prohibited the federal government from religious establishment. By 1802, when President Jefferson wrote a letter to a Baptist congregation in Danbury, Connecticut, referring to “a wall of separation between Church and State” erected by the Constitution, the national state’s refusal to define its population according to religious categories was clear. Over time, and despite a marked rise in popular Christian enthusiasm during the first decades of the nineteenth century, the early American state moved further away from the religious sphere. To be sure, the Constitution had never banned state-supported churches or religious tests at the state level.2 Massachusetts did not abandon establishment until 1833. The early national state lent indirect assistance to religious authorities in a number of ways, such as offering tax exemptions for churches and providing military chaplains – two measures opposed by the strictest of disestablishmentarians, including James Madison. And in People v. Ruggles (1811), a New York case, leading American jurist James Kent upheld the blasphemy conviction of the defendant, who had reportedly said, “Jesus Christ was a bastard and his mother must be a whore.” Such speech, Kent ruled, was “in gross violation of decency and good order.”3 The generation that followed Kent, however, was less willing to use state power to defend Christianity. By the 1840s, when one Pennsylvania judge mocked the idea of a “Christian state” in America, blasphemy convictions were exceedingly rare. The direction of change was clear: the whole country moved steadily toward the standard established first by protoleration colonies like Pennsylvania and then by the new national state and state governments such as Virginia in the immediate post-Revolutionary period. Certainly, churches and their members could have great political influence, and they often lobbied successfully for legal change to support 2 In a 1947 case involving the use of state funds to transport children to parochial schools, the Supreme Court approved such use in a 5–4 decision, but Justice Hugo Black’s majority opinion claimed – erroneously, it seems clear – that the establishment clause applied to the various states, as well as the federal government. Everson v. Board of Education, 330 U.S. 1 (1947). 3 People v. Ruggles, 8 Johns. (N.Y) 290 (1811). Cambridge Histories Online © Cambridge University Press, 2008 Law and the American State, from the Revolution to the Civil War 9 temperance or other reform causes. But even when it came to public policy decisions in which Christians might have been expected to prevail easily via democratic politics, the effective secularism of the state – rooted, it is worth noting again, at least as much in anti-establishment and anti-clerical sentiment as in what might be called modern secular thought – proved surprisingly robust. In 1830, Congress failed to satisfy hundreds of petitioners who demanded the end of Sunday mail deliveries, which caused many post offices to remain open on Sundays. In the vigorous debates on this issue, Senator Richard M. Johnson of Kentucky, a post office committee chair and future U.S. vice president, not only defended the Sunday mails as a necessary element of an efficient national communications system, but went so far as to refer to the equal rights of Jews and pagans. He warned that his opponents were flirting with “religious despotism.” Although some Sunday mail routes disappeared in the coming years (the last post office open on Sunday was closed in 1912), Johnson’s victory over the petitioners in 1830 stands as a notable example of the early national state’s unwillingness to protect favored segments of the population according to religion. When it came to race, the reverse was true. From the beginning, but increasingly over time, statutes, constitutions, and court decisions promoted the formation of a privileged class of white men. In some areas, at least, early actions by the national state encouraged the subsequent extension of white privilege by state lawmakers. Unlike the Constitution, early Congressional statutes encouraged Americans to associate whiteness with full citizenship. In its 1790 Naturalization Act, Congress offered full citizenship to “all free white persons” with two years of residence in the United States. The Militia Act of 1792 required every “free able-bodied white male citizen” to participate in military service. In the coming decades, as new state constitutions denied suffrage and other civil rights to free blacks, some proponents of these measures would justify the racial discrimination by claiming that their absence from the ranks of the militia demonstrated that blacks were never full citizens. The rising legal inequalities between white and black developed simultaneously with growing egalitarianism among whites. During the first half of the nineteenth century, tax or property requirements for suffrage disappeared in state after state. Decades ahead of England, the United States experienced the rise of a popular politics. The presidential election of 1840 saw a total of 2.4 million votes cast; just sixteen years earlier, John Quincy Adams had managed to become president with fewer than 109,000 votes. Well before the CivilWar, then, universal white male suffrage had become the rule. Full citizenship was now a function of race and sex; it did not depend on birth, wealth, religion, or nationality. Some would have had it otherwise. Throughout the period, there was plenty of popular anti-Catholicism, from the published diatribes of the Cambridge Histories Online © Cambridge University Press, 2008 10 Mark R. Wilson inventor Samuel Morse to major mob actions in Boston and Philadelphia. From the heyday of the Federalists to the rise of the Know Nothings in the 1850s, political nativism was easy to find and sometimes succeeded in creating new legislation. But all in all, U.S. immigration and citizenship law remained remarkably open to European men. With the Naturalization Act of 1790, Congress provided for citizenship after two years’ residence, an inclusive and open system that at least indirectly challenged the sovereignty of European states by encouraging their subjects to depart. Although the residential standard soon became five years, efforts to establish much more restrictive systems were defeated on several occasions. Throughout the period, the national government and the various states both regulated immigration through a variety of laws, including the federal Passenger Acts that limited the numbers of arrivals by setting tonnage requirements and the states’ efforts to force shipmasters to accept liability for potential social welfare spending on the newcomers. But these rules did not prevent some 2.5 million people, mostly Irish and German, from coming to the United States during the decade starting in 1845 – one of the largest waves of immigration in all of American history. Overall, the governmental institutions that these people encountered in the United States tended to promote white solidarity, rather than divisions among Europeans. Even as the Know Nothings won short-term victories in New England, for example, many Midwestern and Western states were allowing non-naturalized white aliens to vote. While the circle of white citizenship expanded, the legal denigration of those outside it also increased. This was true even for slaves, in the sense that the well-established institution of slavery, which seemed in the immediate post-Revolutionary period to be on the defensive, became more legally entrenched over time. Before the 1810s, proponents of emancipation had reason for optimism. In 1782, the Virginia legislature legalized manumission, which had been banned in the colony earlier in the century; other Southern states also allowed masters to free their slaves. Meanwhile, in the North from 1790 to 1804 the states abolished slavery altogether, though often with gradual emancipation plans. In 1807, when Congress banned slave imports, the vote in the House was 113 to 5. During the first quartercentury after the Revolution, then, the early American state did relatively little to promote slavery in an active way, although Southern slave owners were always extraordinarily well represented in all three branches of the national government. By the antebellum years, by contrast, many Americans became convinced that a variety of governmental organizations, including Congress and the federal courts, were acting positively in favor of slavery. To be sure, there was some evidence to the contrary. For much of the 1840s and 1850s, the U.S. Cambridge Histories Online © Cambridge University Press, 2008 Law and the American State, from the Revolution to the Civil War 11 Navy operated an African Squadron, which cooperated with a more active British naval force in an effort to interdict the slave trade. And many Northern states had enacted personal liberty laws, which challenged the interstate privileges of slave owners ordained in the Constitution and the Fugitive Slave Act of 1793. But even before 1850, when Congress enacted a stronger fugitive slave law, most of the evidence suggested that slavery was gaining legal support. In 1820, South Carolina banned owners from freeing any slave during the owner’s lifetime; by the 1850s, most Southern states had blocked manumission completely. To the dismay of the members of the American Anti-Slavery Society, established in 1833, Congress adopted a “gag rule” in 1836 that officially tabled any petitions on the subject of slavery. Six years later, in Prigg v. Pennsylvania (1842), the U.S. Supreme Court upheld the 1793 Fugitive Slave Act, ruling the 1826 Pennsylvania personal liberty law unconstitutional. (Undaunted, the state responded by passing a new personal liberty statute.)Newdevelopments during the 1850s would give Northerners even more reason to think that a minority in the slave South was using the state to promote slavery against the wishes of a national majority. Even more than developments in the law and politics of slavery, the changing legal status of free blacks best demonstrated the early American state’s growing devotion to organizing its population in a racial hierarchy. By the end of the antebellum period, most Northern states had joined Southern states and the federal government in making whiteness a qualification for full citizenship. This marked a distinct change from the post- Revolutionary years, when the laws of eleven states allowed free black men to vote. Although we should not romanticize race relations in the Early Republic, these early suffrage laws suggest that in the aftermath of the Revolution race was not fully coupled to citizenship. (The relationship between citizenship and suffrage was no less complicated.) This would soon change, as popular discourse and law both became increasingly racist. As Harriet Martineau observed in her 1837 book Society in America, the Revolutionary War general, the Marquis de Lafayette, had expressed great “astonishment at the increase of the prejudice against color” when he returned to the United States in 1824.4 By that time, many states had reversed their previous policies by explicitly denying the vote to free blacks. Even slave states became stricter in this area: it was not until 1834 and 1835, respectively, that Tennessee and North Carolina passed laws ending black suffrage. In the 1820s, as it moved to give the vote to white men regardless of wealth, New York imposed a new $250 property requirement on black men. In 4 Harriet Martineau, Society in America [1837], ed. Seymour Martin Lipset (Gloucester, MA: Peter Smith, 1968), 123. Cambridge Histories Online © Cambridge University Press, 2008 12 Mark R. Wilson 1838, Pennsylvania – where Tocqueville had noted only a few years earlier that the “tyranny of the majority” created a kind of de facto disfranchisement – made whiteness an official qualification for voting. Ohio’s new 1851 constitution did the same; so did Oregon’s original constitution in 1857. Meanwhile, the majority of states passed laws prohibiting free blacks from entering them at all. By the eve of the Civil War, only five New England states, in which lived only 4 percent of the free black population, failed to link whiteness and suffrage.We should not exaggerate the novelty of Chief Justice Roger Taney’s decision in Dred Scott v. Sandford (1857), declaring that those outside the “white race” had no citizenship rights in the United States. In some ways, this was merely the logical extension of the principles that both Northern and Southern states had been adopting over the preceding decades. Three years earlier, Congressman John Dawson of Pennsylvania had already declared that the “word citizen means nothing more and nothing less than a white man.”5 From census methods to suffrage laws, most governmental institutions in the field of population and personal status enforced distinctions of sex as well as race. In part because these two categories overlapped, however, the state’s changing relation to women followed a different trajectory than it did with persons designated non-white. While women were never allowed full citizenship rights, they were increasingly provided with legal rights that brought them into a more direct relationship with the state, just as the individualized 1850 census schedules implied. This is not to overlook the considerable inequalities imposed by the state throughout this era, which were thoroughly criticized at Seneca Falls in 1848 and in a wave of subsequent conventions for women’s rights. Indeed, when it came to suffrage, there were grounds here too for a narrative of declension: in New Jersey, propertied single women had enjoyed the vote from the Revolution until 1807, when they were disfranchised even as the vote was extended to a wider circle of men. While the champions of woman suffrage would not begin to triumph until well after the CivilWar, in other areas the antebellum state began to treat women more as individual subjects. This was evident in both property law and family law. Under the traditional coverture doctrine, husbands were allowed full legal control over the property brought to the relationship by their wives, who in the eyes of the state had no independent economic status. But starting with Mississippi in 1839, married women’s property laws proliferated. By 1865, twenty-nine states had enacted laws allowing wives more control over property. While conservative courts continued to favor husbands in property cases, this was still a significant change. Immediately 5 Congressional Globe 33rd. Cong., 1st Sess., Vol. 28 (28 February 1854), 504. Cambridge Histories Online © Cambridge University Press, 2008 Law and the American State, from the Revolution to the Civil War 13 before the Civil War, Massachusetts and New York went one step further by passing laws allowing married women control over their wages. When it came to divorce and child custody, there was also a clear trend toward liberalization. While fathers continued to be favored by the courts until the end of the era, mothers were increasingly seen by the courts as deserving consideration in child custody cases. There were many reasons for the changing legal status of women during these years, which surely included the efforts of early feminists, as well as the long-run revolutionary potential of Revolutionary rhetoric. But the rise of whiteness as a social and political marker also contributed to the change. Although the hierarchy with which the early American state came to imagine its population clearly privileged white men above all others, white women enjoyed at least a residual effect of the growing association between race and legal rights. In this sense, race trumped even sex, to say nothing of alternative social categories such as religion, in the politics of population in the early United States. II. ECONOMY The role of the early American state in the economic sphere is a subject that has engaged scholars for several generations. It was also, of course, a matter of great concern to the Americans who lived during the years from the Revolution during the CivilWar. National politics, as well as those at the state and local levels, often turned on debates over the state’s proper economic role. From Jefferson and Hamilton to the Jacksonian Democrats and the Whigs, leading statesmen and major political parties identified themselves by articulating specific programs of political and economic policy; much of the work of courts and legislatures pertained directly or indirectly to this issue. To most observers, it was evident that commerce and industry in the new nation promised unprecedented growth, as well as disorder. But Americans’ differing understandings of the proper balance between energy and stability (to use the language of the Federalist) and the proper distribution of power in the economic sphere made political economy a contentious subject. Historians have debated three distinct narratives of the development of early national political economy and law. The first stresses the growing tendency of legislators and courts to abandon traditional regulations and common law doctrines in a way that facilitated the development of private capitalist enterprise. The second, largely in reaction to the first, emphasizes the continuing robustness of government regulation and republican moral economy. A third narrative, less linear than the first two, uses the history of federal and state policy on transport infrastructure to describe a rise and Cambridge Histories Online © Cambridge University Press, 2008 14 Mark R. Wilson fall of government promotion and administration of enterprise during this period. Each of these three narratives is valuable. Together they tell us a great deal about the direct and indirect activities of the early national state in the field of economy. Each, however, projects a story that is excessively linear and rather narrow. Histories that stress the continuity of regulation and the traditionalism of courts successfully demonstrate the defects of a narrative in which law increasingly serves entrepreneurial ends, but turn a blind eye to clear evidence of trends in the direction of deregulation. Studies that concentrate on the crucial subject of internal improvements, on the other hand, exaggerate the rise of privatization in the late antebellum era by assuming, mistakenly, that trends in the 1830s and 1840s continued into the last decade of the period. Nor, in any case, was all the world Ohio and Pennsylvania; nor were internal improvements the only important field for state enterprise. Histories that point to a decline of state enterprise and state promotion sit uneasily with the record of state activity in Southern and Western states and with the work of national and local government. While it is indisputable that competitive capitalism and private capital had become more important over the course of this period, government enterprise and state promotion remained an essential part of the early American political economy, all the way into the Civil War. As several generations of historians have taken great pains to establish, the early United States should not be understood as some kind of libertarian laissez-faire paradise. The state was a major economic actor during the antebellum period, not only as a promoter of internal improvements and other enterprises that might have been left to the private sector but also as a regulator. Municipal regulation enforced by local and state courts was particularly vigorous, much of it lasting through the end of the period. The early American state did not leave the problems of local road building, fire protection, pollution, and public health to private markets. Instead, local officials and judges drew up and enforced elaborate lists of regulations, which they saw as legitimate manifestations of state police power necessary to maintain harmony and order. For every statute or court decision that served to promote capitalist enterprise during this era, evidently there was another that bolstered traditional arrangements or even demanded more public responsibility from private entrepreneurs. For anyone laboring under the illusion that political economy and law in the early United States were either overwhelmingly laissez faire or unambiguously dedicated to advancing the interests of leading merchants and industrialists, accounts of considerable and continuing regulation serve as an especially important corrective. But they fail to tell the whole story. To Cambridge Histories Online © Cambridge University Press, 2008 Law and the American State, from the Revolution to the Civil War 15 be sure, late antebellum cities regulated, just as their colonial predecessors did. Courts often served as a conservative force in early America, just as Tocqueville said they did. But the era was shaped by powerful historical tides that ate away at older arrangements. Even at the municipal level, the regulatory environment changed dramatically. Take, for example, one of the most important everyday manifestations of state power: the regulation of food markets. In the 1790s, many cities and towns confined produce and meat sales to exclusive state-owned markets; they also fixed prices for bread. By the 1830s and 1840s, these measures were dropping away as food marketing became increasingly privatized, first illegally, and then under legal sanction. In New York City, the common council responded in 1821 to years of pressure from bakers by substituting standard loaf weights for fixed prices. By the 1850s, New York mayor FernandoWood openly rejected any vestiges of “the practice of the old cities of Europe,” hailing the privatization of meat marketing as a superior system. This was just one important indicator of the decline of traditional state regulation. Outside the field of municipal regulation, the direction of state policy ran even more clearly in favor of competition and innovation. Business corporations, for instance, became increasingly common and less bound to public oversight and public purposes. In the 1790s, most corporations were non-profit organizations; they were widely understood as highly regulated public or semi-public entities. But by the middle of the nineteenth century, several states had passed general incorporation laws, which allowed businesses to incorporate legally by applying to state legislatures for special charters. Meanwhile, courts increasingly supported state charters of new corporations that competed with older ones, which had previously enjoyed a monopoly. As it claimed broad federal powers over commerce in Gibbons v. Ogden (1824), the Supreme Court had ruled against a steamboat monopoly chartered by New York State. But a more direct blow to the old monopolists came from the Taney court in the case of Charles River Bridge v.Warren Bridge (1837), which upheld a Massachusetts court ruling that rejected exclusive franchise in favor of competition. In property law, state courts moved to favor development over stasis. This was evident in judges’ changing attitudes toward the use of streams and rivers, which became increasingly important – especially in the Northeast – as potential sources of industrial power. In colonial New England, farmers and iron makers had struggled over water use, with each side winning significant victories from the legislature. But in the nineteenth century, courts became increasingly sympathetic to the arguments of industrialists, who claimed that the economic benefits of a new mill outweighed the costs to farmers and fishermen downstream. The courts’ changing understanding Cambridge Histories Online © Cambridge University Press, 2008 16 Mark R. Wilson of this field was evident in the Massachusetts case of Cary v. Daniels (1844), where the court stressed the public benefits of economic development over traditional usages and rights. In the fields of contract and labor law, the state moved away from a conservative paternalism and toward a liberal political economy that imagined a market consisting of countless dyads of freely associating individuals. This was not at all the case, clearly, when it came to slavery. But elsewhere, courts came to favor competition, mobility, and efficiency. This doctrine could benefit employees, who by the eve of the Civil War had become the majority of the American labor force. By the 1830s, for example, an employee who wished to leave a job in the middle of the term stipulated in a contract would almost certainly not be compelled by a court to serve out his or her term. Instead, he or she would face a monetary penalty of forfeited wages, which in many cases might be preferable to compelled service or jail. And the courts’ growing interest in promoting economic competition could sometimes even work in favor of labor unions. In the Massachusetts case of Commonwealth v. Hunt (1842), the state’s highest court overruled a lower court’s ruling that a union of boot makers was illegal under the common law doctrine of criminal conspiracy. Unions and even the closed shop were permissible, ruled the Massachusetts high court. But even the most worker-friendly decisions of antebellum courts left plenty of room for anti-union rulings in subsequent cases. By the 1870s certainly, courts were routinely ruling against unions. More broadly, in the context of an ongoing process of industrialization in which economic power was increasingly concentrated, the move away from concerns about equity in contract and labor law served in many cases to favor employers over employees. While customers or passengers were often successful in winning tort cases against businesses, employees – who were understood to have agreed to at least a temporary condition of subordination – fared less well in the courts. In the well-known Massachusetts case of Farwell v. Boston & Worcester Railroad Co. (1842), for instance, the court ruled against an employee whose hand was crushed in a workplace accident. Such cases demonstrated that, while the changing legal environment promoted the development of an increasingly flexible labor market, employees’ formal privileges and powers in the workplace often failed to extend much beyond their ability to quit. While state and federal courts tended increasingly to favor mobility, competition, and innovation in many fields of the law, state and federal legislatures also acted deliberately to promote economic growth. Here, there was considerable disagreement about the means by which government – and which level of government – should act. This debate played out most spectacularly in the fields of banking, communications, and internal Cambridge Histories Online © Cambridge University Press, 2008 Law and the American State, from the Revolution to the Civil War 17 improvements, which were among the most important political issues of the day at the local, state, and national levels. While the development of the political economy of banking and transport infrastructure did not proceed in a linear fashion, between the Revolution and the Civil War there had been a notable rise and fall of direct government administration in these fields; in communications, the change was less dramatic, but moved in the same direction. Banking In banking, of course, one of the most important developments was President Andrew Jackson’s campaign against the Bank of the United States, which led to the rise of “free banking” in the states. Chartered by Congress in 1791, the first national bank was a semi-public institution, in which the United States held a 20 percent ownership share. In 1811, this first bank was allowed to die, by a one-vote margin in the Senate. Five years later, after a war in which a national bank was sorely missed, Congress chartered the Bank of the United States anew, again with the federal government owning a one-fifth share. Easily the largest bank and largest business corporation in the country, the Bank had considerable indirect power over the money supply. It also had a large public profile. Protected from state-level taxation by the Supreme Court’s decision in McCulloch v. Maryland (1819), the Bank was an embodiment of federal and Federalist power, well after the death of Hamilton and the rise of the Jeffersonian majority. Owned largely by private investors – many of them overseas – and often promoting deflation through conservative reserve policies, it was a prime target for attacks by populists and soft money men. Jackson, who issued a surprising challenge to the Bank in his first presidential message to Congress in 1829, went to open war against it in 1832, when he vetoed a bill that would have renewed its charter. Attacking the Bank of the United States as a monster that oppressed the common man, Jackson won a landslide victory in the elections that fall. Then, by moving U.S. Treasury funds into twenty-three state-chartered “pet banks,” Jackson ended the national state’s support for the nation’s most powerful financial institution. In 1836, Congress refused to renew its charter. The death of the Bank of the United States demonstrated the Jacksonians’ ideological commitment to the decentralization of economic power. Decentralization was certainly not the same thing as laissez-faire or antidevelopmentalism. In banking, as with corporations more generally, the early American state came to favor a policy of competition via low barriers to entry. Beginning with Michigan in 1837 and New York in 1838, a total of eighteen states passed “free banking” laws in the antebellum era, Cambridge Histories Online © Cambridge University Press, 2008 18 Mark R. Wilson allowing the formation of banks without special charters from the legislature. These banks were still subject to state regulation, which normally required that any notes they issued be backed by government bonds. By the late antebellum era, then, the national state had little control over money supply. There was no national currency, not even of the limited sort that the Bank of the United States had effectively provided in the 1820s, and Treasury funds were strictly segregated from the banking system. Equally important, the state had little symbolic presence in this field. Awash in a bewildering array of bank notes issued by institutions all over the country, the United States was not yet bound together by the greenback. Communications In the field of communications, the early United States provided considerable direct and indirect subsidies through a world-class postal service and liberal press laws.With the Post Office Act of 1792, Congress created what would quickly become a giant state enterprise; for the next eight decades the postal system was rivaled only by the military in its reach and cost. (Unlike the military, the postal system came close to paying for itself: although it absorbed $230 million in U.S. funds before the Civil War, it brought in $171 million.) By 1828, there were about 8,000 post offices in the United States, serving an area of 116,000 square miles and delivering 14 million letters and 16 million newspapers a year. Considerably larger than the postal systems of Britain and France, to say nothing of Russia, this national state enterprise dwarfed any governmental institution at the state or local level. And its influence clearly went well beyond its sheer economic size. To the extent that the early United States came to be bound together culturally during these years, across regional and state boundaries, it was due in large part to the communications network managed by the Post Office Department. Certainly, the American state was especially active in giving its subjects access to information. Thanks to postal subsidies and low taxes on publishers, by the 1830s, per capita circulation of newspapers in the United States was triple that in Britain. But in communications, as in banking, it was possible to see a retreat of the state during the antebellum period. Telegraphy, originally sponsored by the national government, became a private concern in the 1840s. Internal Improvements In the field of internal improvements, historians have charted a similar rise and fall of direct government promotion at both the national and state levels. Cambridge Histories Online © Cambridge University Press, 2008 Law and the American State, from the Revolution to the Civil War 19 Here again, the Jacksonians worked to reduce the national state’s presence in the economic field. Before it crystallized as the “American System” identified in the 1820s with Henry Clay and President John Quincy Adams, a policy of major national state assistance to transport infrastructure had been advocated by several leading American statesmen, including Albert Gallatin and John C. Calhoun. In 1817, Calhoun urged Congress, “Let us . . . bind the Republic together with a perfect system of roads and canals. Let us conquer space.” The support inWashington for such a policy, always shaky, crested in the 1820s. In 1822, President Monr,oe signed a bill that provided for the extension into Ohio of the National Road, which had been originally authorized in Congress in 1806 and began in earnest after theWar of 1812. Then, with the General Survey Act of 1824, Washington tapped the Army Corps of Engineers – really the only group of formally trained engineers in the country – to work on internal improvements projects. Over the next decade and a half, the military engineers surveyed fifty railroads. Meanwhile, President Adams, who called not only for more federal aid to canals but also for a national university and the adoption of the metric system, went well beyond what Congress was willing to support. His successor, Jackson, signaled his rejection of the American System with an 1830 veto for an extension of the National Road into Kentucky, as well as with his war against the Bank of the United States. Although federal internal improvements spending continued to be high under Jackson’s watch, there was a significant shift in resources toward the western part of the country, which received large appropriations for roads and river improvements. Not until 1837, with the economy in recession and President Van Buren in office, was there a sharp drop in federal spending in this field. All in all, from 1790 to 1860, the federal government distributed about $43 million in direct outlays for internal improvements, plus another $77 million in indirect grants, including land grants and a major distribution to the states in 1836 of the Treasury surplus. State-level outlays on internal improvements during these years were even higher. And here too, historians have found it easy to construct a narrative of early action followed by retreat. While the states did invest in turnpikes, railroads, and other infrastructure projects, they did the most with canals. From 1815 to 1860, of the $188 million spent on canals in the United States, about three-quarters of the money came from governments, mostly at the state level. The Erie Canal, begun in the 1810s and completed in 1825 for about $7 million, was a spectacular success that led other states to emulate New York’s example. After Jackson replaced Adams in the White House in 1829, it became clear that the states could not expect much aid for canals fromWashington. The states responded with massive borrowing to finance their canal projects, many of which faced more difficult terrain Cambridge Histories Online © Cambridge University Press, 2008 20 Mark R. Wilson and lower anticipated revenues than the Erie Canal. By 1840, the various states had accumulated $200 million in debts, a thirteen-fold increase on their debt burden of twenty years before. In 1841–43, a total of eight states and one territory defaulted, enraging the British investors who held most of the debt. Over the next decade and a half, eighteen states altered their constitutions to limit state outlays and indebtedness. The canal era was over. Or so it has seemed. By using a chronological frame running from the 1810s through the 1840s, and by concentrating on the fields of banking and internal improvements, it is easy to describe a narrative of the rise and fall of state enterprise in the early United States. But this story should be questioned. Even in the field of internal improvements, government continued to be quite active. In the 1850s, a Democrat-majority Congress passed a new river and harbor bill, authorized four separate surveys for the transcontinental railroad, and provided large land grants to two railroads in Alabama as well as a 2.5 million-acre grant to the Illinois Central Railroad – to become one of the nation’s leading lines. Many of the various states, like the national government, continued to invest in transport infrastructure. In 1859, New York spent more than $1.7 million, or half the state budget, on its canals. True, only about a quarter of the $1 billion invested in U.S. railroads by 1860 came from public sources, whereas close to three-quarters of canal funds came from government; but in total the actual public moneys spent on railroads were about as much as the canal outlays. In the late antebellum era, several Southern states promoted railroads with considerable energy. Whereas Pennsylvania spent about $39 million on canals and only about $1 million on railroads before 1860, Virginia’s outlays were $14 million for canals and $21 million for railroads. In Georgia, where the Western & Atlantic line was fully state owned, public funds accounted for half of the $26 million invested in railroads by 1860. Across the antebellum South, more than half of all investment in railroads came from government. Most public spending on railroads came from local governments, rather than the states. State support for internal improvements did not disappear after 1840, in other words, but shifted away from the state governments toward the local level. In Pennsylvania alone, local governments raised about $18 million for railroads. In 1840, local government debts associated with internal improvements stood at about $25 million; by 1860, they had risen to $200 million – the same amount that the states had owed at the height of the canal finance crisis. Outside the field of internal improvements, other activities of local government also suggest deficiencies in a narrative of a rise and fall of state enterprise during this era. When it came to police and education, two of the most important areas of practical state activity, there was no trend in Cambridge Histories Online © Cambridge University Press, 2008 Law and the American State, from the Revolution to the Civil War 21 the direction of privatization, but rather the opposite: a significant increase in state enterprise. During the 1840s and 1850s, the country’s largest cities abandoned informal, voluntary watch systems for large, professional, uniformed police forces. In 1855, Philadelphia counted 650 full-time police officers, organized into sixteen districts. This was a powerful new governmental institution, which embodied a rather sudden shift away from a less formal administration of municipal criminal justice, in which politicians and private citizens had formerly exercised considerable discretion. Even more impressive was the continuing expansion of state enterprise in the field of education. Federal land policy, which provided the various states with nearly seventy-eight million acres for the support of public schools, helped the United States join Prussia during this era as a world leader in public education. But the most important work was done by state and local governments. At the state level, there was a significant increase over time in school administration and spending. Starting with Massachusetts in 1837, many states created boards of education, which regulated local efforts. In the South as well as the North, education took up an increasing share of state budgets: during at least some years in the 1850s, spending on schools and universities accounted for at least a quarter of all state expenditures in Alabama, Connecticut, Louisiana, Michigan, New Jersey, North Carolina, Pennsylvania, Tennessee, andWisconsin. Overall, the fraction of state budgets devoted to education rose from an average of 4 percent in the 1830s to 14 percent in the 1850s. Even more governmental activity in the field of education occurred at the local level, where public enterprise became much more important over time, rather than less. In New York City, one key shift occurred in 1842 when the city established an elected Board of Education, taking the business of public schooling away from the voluntary associations that had previously overseen it. By 1850, the public schools were teaching 82 percent of New York City pupils; just two decades earlier, nearly two-thirds of the students had been taught in private institutions. By the eve of the CivilWar, when from Massachusetts to Alabama more than half of white children attended school, public schools were quickly growing in number and offering more days of instruction out of the year. By the eve of the CivilWar, local governments had thus embraced public enterprise to a very significant extent. This fact clashes with any narrative of the development of antebellum political economy that attempts to use the history of national and state-level internal improvements policy to suggest that by the late 1840s state enterprise was dead as an idea and a practice. It was not. Nor was it the case, despite some significant innovations in courtmade property and contract law, that the early American state became progressively more devoted overall to promoting private enterprise. Local Cambridge Histories Online © Cambridge University Press, 2008 22 Mark R. Wilson governments’ large investments in modern police forces and large new public school systems are among the more important pieces of evidence to the contrary. Such local activities serve to confirm many traditional accounts of the early American state. But they were not the whole story. Contrary to what many historians of this era have suggested, the various states were overshadowed before the Civil War not only by local governments but also by the national state. III. TERRITORY In his 1889 comparative legal treatise on The State, Woodrow Wilson declared that “the great bulk of the business of government still rests with the state authorities” (meaning the various states), implying that it had always been so. For later observers, tracing American political development from the nineteenth century though theWorldWars, New Deal, and Great Society, it was even easier to describe an earlier political order dominated by state and local government, which gave way only in the twentieth century. There was something to this view: the nineteenth century never saw the emergence of the kind of national state that existed in the United States in the late twentieth century – the kind that absorbs fully 20 percent of total national income in peacetime. Still, theWilsonian assumption ignores the considerable evidence pointing to the great power and influence of the early national state. Perhaps the most notable change in the United States during this period, it is worth repeating, is the tripling in size of its territory, to a land area of nearly three million square miles. This territory was gained by the diplomatic, military, and legal activities of the national state; it was also managed by the national state for many years thereafter. Even in the early twenty-first century, nearly a third of the land area of the United States is controlled directly by federal agencies. Traditional understandings of the early American state assume, rather than establish, the insignificance of the national government. They simply fail to recognize the importance of territorial acquisition and management to the national state’s growth and consolidation. One basic fact about the early American state, often overlooked, is that the economic footprint of the combined states was considerably smaller than that of the national government, and also less than local government. Even at the height of the canal era, the combined expenditures of all the states amounted to only about two-thirds of federal outlays; more often, they came to only one-third. Combined local government expenditures, which are difficult to measure, appear to have been greater than those of the states, but still slightly below U.S. outlays. In other words, not only in Cambridge Histories Online © Cambridge University Press, 2008 Law and the American State, from the Revolution to the Civil War 23 the twentieth century but also in the nineteenth, the federal government outspent its state and local counterparts. Nearly all U.S. revenues during this era came from customs duties; in a few years, land sales were also significant. Where did the money go? Well over half of it went to the largest of all enterprises, public or private, in early America: the U.S. postal system and the U.S. military. For nearly every year of the first half of the nineteenth century, the military alone absorbed close to three-quarters of federal spending. We must understand that although the economic and military footprint of the early American state was smaller than that of its European counterparts, it, like them, was nonetheless at heart an organization that concentrated coercive power with an eye to territorial domination. In terms of land area, the infant United States was already an outsized national state relative to those in Europe, even before the Louisiana Purchase and the MexicanWar. The territory over which this network operated grew tremendously during these years in two giant leaps and several smaller steps. The Louisiana Purchase of 1803, of course, was the first giant territorial expansion. This event, like the War of 1812, must be understood in the context of the giant conflict then taking place on the European continent among national states then considerably wealthier and more powerful than the United States. At war with most of his neighbors, Napoleon had an immediate need for the $15 million that Jefferson happily paid for lands that stretched from New Orleans up to and beyond the Yellowstone River in the northwestern plains. The Napoleonic Wars were also the most important force behind the War of 1812, in which the United States managed to emerge with its sovereignty and territorial boundaries intact, despite British troops’ burning of the new national capital atWashington. In the years leading up to the War of 1812, events on the Atlantic that were of relatively little concern to the European belligerents took on high importance in the new American nation, which was sensitive about affronts to its sovereignty – even if many of them derived from American merchants’ efforts to profit by supplying both sides of the war in Europe. From 1798 to 1800, the United States engaged in an undeclared naval war with France. After a settlement was reached with France, offenses by the British took center stage. From the American perspective, these offenses were considerable: in the decade before 1812, Britain captured more than 900 American ships and impressed as many as 10,000 U.S. citizens into the British navy. In 1807, in one of the incidents that most enraged the American public, the British ship Leopard fired on the American ship Chesapeake, causing twentyone U.S. casualties, before British sailors boarded the American vessel to haul off four alleged deserters. This famous violation of U.S. sovereignty was met in Washington with a disastrous new trade policy: the Embargo Cambridge Histories Online © Cambridge University Press, 2008 24 Mark R. Wilson Act of 1807, which cut U.S. exports by 80 percent without doing much to affect British behavior. Five years later, a Congress divided along party lines declared war on Britain, which after years of fighting the giant French armies now faced a return to the transatlantic logistical nightmare that it had known a generation before. Even after the French collapse in early 1814, Britain chose not to pursue another extended conflict in North America, in part because of successful American resistance. Two weeks before the most celebrated American military victory of the conflict, Andrew Jackson’s defeat of the British at New Orleans in January 1815, a treaty was signed. Naturally, theWar of 1812 stressed the American state and changed its relationship with the people living within its boundaries. During the war itself, the national state struggled to manage the economic mobilization, a task made especially difficult by the recent death of the first Bank of the United States and the refusal of Federalist bankers to assist the war effort. For the tens of thousands of men who moved into the armed forces, as well as for many of their friends and relatives on the home front, the war provided a new connection to the national state that was incarnated in symbols – banners and patriotic songs. But for the development of the American state, the immediate aftermath of theWar of 1812 was at least as important as the conflict itself. When the war was over, many U.S. military institutions were expanded and thoroughly reorganized, taking a form that they would hold through the end of the century. As Secretary ofWar from 1817 to 1825, John C. Calhoun created a new staff system, demanding much higher levels of organization and accountability. The army supply bureaus that would later fuel American troops in the Mexican War and Civil War, including the Quartermaster’s Department, Subsistence Department, and Ordnance Department, were rooted most directly in the Calhoun-era reforms. Meanwhile, the U.S. Military Academy at West Point, created in 1802 under President Jefferson, was reformed after theWar of 1812 under a new superintendent, Captain Sylvanus Thayer. Now modeling itself after France’s L’Ecole Polytechnique, West Point became the nation’s first engineering school. As we have noted, several dozen of its graduates would be detailed for work on civilian internal improvements projects under the General Survey Act of 1824. By 1860, West Point graduates comprised more than three-quarters of the army officer corps. The officer corps stood out in early America as an unusually professionalized group with an unusually practical higher education. The U.S. Navy also saw expansion and reform. The navy’s equivalent to West Point, the U.S. Naval Academy at Annapolis, was created in 1845. Meanwhile, the navy was reorganized according to a bureau system that resembled that of the army. No less than the army, the navy extended its reach during this era. By the 1840s, it had separate squadrons operating in Cambridge Histories Online © Cambridge University Press, 2008 Law and the American State, from the Revolution to the Civil War 25 the Mediterranean, the Pacific, theWest Indies, the East Indies, the South Atlantic, and off the coast of Africa. Still no match for the giant British fleet, the U.S. Navy nevertheless came during these years to have a global reach. One sign of its growing influence came in the early 1850s, when Commodore Matthew C. Perry led a U.S. naval force that compelled Japan to open its ports to the West. Throughout this era, military institutions and installations were among the most important manifestations of the American state. Largely through its military, the national state served as an extraordinarily important actor in the fields of high-technology manufacturing, exploration, and overseas trade. Innovations in small-arms manufacture, including the development of interchangeable parts, were pushed forward by the army’s two national armories, at Harpers Ferry, Virginia, and Springfield, Massachusetts. Like the army, the navy, which ran its own construction yards in ports up and down the Atlantic seaboard, employed a mixed military economy that combined contracting with large-scale state enterprise. One of the most important state institutions of the late antebellum era was the army’s Corps of Topographical Engineers, authorized by Congress in 1838 as a fullfledged sister to the Corps of Engineers. Over the years that followed, the Topographical Engineers became a leading source of territorial knowledge. Serving the technical purposes of the state, this knowledge also became popular. The reports of the 1842–45 journeys of the team of one Topographical Engineer, John C. Fr´emont, became best sellers. After the Mexican War, the Topographical Engineers literally created the boundaries of the United States, with their surveys of the new borders with Mexico and Canada. During the 1850s, the army engineers built thirty-four new roads in the far West. They also conducted four major surveys for a new Pacific railroad. The military was never far from state-supported scientific efforts during this era; such efforts in turn accounted for a considerable proportion of all scientific knowledge generated in the early United States. By one estimate, close to a third of all scientists in antebellum America worked directly for government. At the state level, support for science came largely in the form of government-sponsored geological surveys, which helped chart the riches of Pennsylvania coal and California gold. More important for early American science was the national government, which funded leading scientific enterprises, such as the U.S. Coast Survey and Naval Observatory. The most important American global exploration effort of the era, the U.S. Exploring Expedition (or “Ex Ex”) of 1838–42, used six ships and nearly $1 million in federal funds; among its accomplishments was the co-discovery, with French and British ships, of the continent of Antarctica. This ongoing institutional expansion and influence on the part of the military echelon of the national state were not matched by the military activities of the various states. Many states effectively reneged on the constitutional Cambridge Histories Online © Cambridge University Press, 2008 26 Mark R. Wilson and statutory military obligations established just after the Revolution. In theory, the states should have maintained viable public militias through conscription, upholding the non-regular reserve side of the much-hailed American “dual military” tradition. In practice, state militias withered away during the early nineteenth century. During the 1840s, seven states ended compulsory service altogether. While voluntary militia companies sometimes expanded to take their place, this was still an important development away from a federal military system and toward a more fully nationalized military. One of the central tasks of the U.S. Army, of course, was to serve the early American state’s management of Native Americans. It did so not only through active military operations but also routine administration. Significantly, the Bureau of Indian Affairs (also called the Office of Indian Affairs) was established in 1824 as a division of the War Department, by order of Secretary of War Calhoun. This formalized the existing War Department oversight of “Indian agents,” the U.S. officers authorized by Congress to oversee trade and other aspects of U.S. policy toward Native Americans in the early nineteenth century. Starting in 1796, Congress demanded that the Indian trade be conducted through official government “factories,” or trading posts, which effectively regulated an important part of the American economy. The factory system ran until 1822, when the private fur trade lobby convinced Congress to kill it. But well after this, the War and Treasury Departments continued to oversee a different aspect of economic exchange on the frontier: the payment of annuities, which were a common feature of U.S. treaties with various tribes. By 1826, these annuities amounted to $1 million a year, about 6 percent of all federal outlays. When Congress streamlined the Indian service in 1834, army officers became even more responsible for the distribution of annuities, to which was added regulation of the liquor trade and other basic tasks of administration. Fifteen years later, in 1849, the work of Indian affairs was moved out of the War Department and into the new Interior Department. Only in the last decade of this whole era, in other words, did the U. S. military lose direct oversight of all aspects of Indian affairs. Along with routine administration, of course, the military enforced the Indian policies of the early American state with naked coercion. This was certainly the case in the aftermath of the Indian Removal Act of 1830. Over time, the United States became less willing to recognize groups of Indians within its territory as independent sovereign states. Supporting the drive of European-American settlers for more land, the early American state turned increasingly to force to meet this end. None of this was new in 1830. For instance, the 1795 Treaty of Greenville, in which the United States formally acquired the southern two-thirds of Ohio in exchange for $20,000 cash and Cambridge Histories Online © Cambridge University Press, 2008 Law and the American State, from the Revolution to the Civil War 27 a $9,500 annuity, followed a military victory by RevolutionaryWar general AnthonyWayne. This victory reversed a crushing defeat suffered in 1791 by a European-American force led by Arthur St. Clair, the territorial governor. During the 1810s, two future U.S. Presidents, William Henry Harrison and Andrew Jackson, won victories over Shawnee and Creek forces in the Indiana and Mississippi territories. Despite all this early military activity, however, there was still an important shift in state policy between the Revolution and the Civil War away from treating Native Americans as sovereign or even semi-sovereign entities. In the cases of Johnson v. M’Intosh (1823) and Cherokee Nation v. Georgia (1831), the Supreme Court held that Indian tribes lacked full sovereignty. In Worcester v. Georgia (1832), the Supreme Court appeared partially to reconsider. But the state of Georgia and President Jackson, who wanted the vast Cherokee lands for white settlers, simply ignored the ruling. By 1840, some 60,000 members of the southeastern Indian tribes had been forcibly resettled in the new Indian Territory (now Oklahoma). From an earlier policy of treaty-making backed by military force, the American state had moved toward one of direct coercion and control. The vast majority of Native Americans, who were not U.S. citizens, were turned into stateless peoples living under imperial rule. While the Indian removals of the 1830s and the annexation of Texas and Mexican War of the following decade stand as powerful evidence of the early American state’s appetite for territorial domination and expansion, this hunger had limits. This was true especially when it came to dealing with the European powers, with which the United States continued to forge diplomatic rather than military solutions to potential territorial disputes. Many military officers who served along frontier flashpoints, as well as Congress and the State Department, were wary of violating the existing international order of state sovereignty. It was through an 1819 treaty that the United States took over Florida from Spain, and despite many calls for U.S. control of Cuba, the island remained in Spanish hands until the end of the century. The Monroe Doctrine of 1823 warned European powers against additional territorial colonization in the Western hemisphere, but the U.S. quietly acceded to British annexation of the Falkland Islands in 1833. An equally important non-war occurred in the 1840s in the far northwest, where President James Polk, among others, claimed to seek an expanded U.S. territory that would reach above the 54th parallel. But in 1846, Congress agreed to a boundary along the 49th parallel, the line that Britain had proposed more than two decades before. And while American private citizens violated the sovereignty of foreign states by launching filibusters in Central America and elsewhere, they failed to gain U.S. approval. In each of these cases, it appears that many governmental institutions and Cambridge Histories Online © Cambridge University Press, 2008 28 Mark R. Wilson officers tended to restrain, rather than promote, the territorial expansion through military action demanded by many settlers, newspaper editors, and elected officials. The one great territorial acquisition of the immediate antebellum era, of course, did come from military conquest. By 1848, Tocqueville’s prediction of Anglo-American continental hegemony, made only a decade before, had been realized rather abruptly by the Treaty of Guadalupe Hidalgo, ending the Mexican War. The vast preponderance of land in what would be the continental United States was now under the direct and exclusive authority of the national state. By 1850, the nation counted 1.2 billion acres of public land.With the giant territorial leaps of 1803 and 1848, the management of vast physical spaces became far more important for the early American state than it had been in the day of President Washington. The state’s greatest resource, territory was also the state’s greatest challenge. Throughout the period, the national state used property law and land policies, in addition to its postal and military institutions, as a way of managing territory. These policies, which must be understood as among the most important facets of state action in early America, altered the nature of the physical spaces over which the state claimed hegemony. An economical means of territorial consolidation, they suggested the potential power and efficacy of a new, liberal form of statecraft. They also led to the fracturing of the state itself, in a terrible civil war. All of this demonstrated the relative importance of national state policy and administration. Even before the Louisiana Purchase, the infant American state had struggled with the problem of territorial management. After the Revolution, many of the American states ceded to the Union their claims to lands on their western frontiers. Cession of claims, it was hoped, would bolster the legitimacy and fiscal health of the new national state while reducing interstate conflict. This was a significant enhancement of national state power. The first Congresses then passed critical legislation that would shape the American landscape and the American polity for decades to come. The Northwest Ordinance, enacted in 1787, created a standard mechanism – in advance of the ratification of the Constitution – for the political consolidation of western territories. This measure established a three-stage process for the formation of new states, through which U.S.-appointed territorial governors would serve until replaced by full-fledged state governments. The basic blueprint for the expansion of American federalism, the Northwest Ordinance applied to the territory that between 1803 and 1848 would enter the Union as the states of Ohio, Indiana, Illinois, Michigan, andWisconsin. (The remainder of the original territory became part of Minnesota, which achieved statehood in 1858.) While the actual paths taken by many of the new territories to statehood departed somewhat from the original plan, in Cambridge Histories Online © Cambridge University Press, 2008 Law and the American State, from the Revolution to the Civil War 29 every case the national state had tremendous influence over the early political development of theWest. Not especially wild, theWest was organized from the beginning by law, from Congressional statutes to the workings of local justices of the peace and county courts, which spread the common law and other old English institutions across the American continent. No less important than the Northwest Ordinance was the Land Ordinance of 1785, with which the Confederation Congress established procedures for the transformation of territory into land through a national rectilinear surveying system. While it is possible to overstate the extent to which the early American state consolidated its rule by thus enhancing the legibility of the landscape, there can be no doubt that this was a field in which the national state exerted powerful influences over the U.S. spatial and economic order. Under the 1785 law, the basic unit became the township, a square six miles long and six miles wide, which created a total of thirty-six “sections” of one square mile (640 acres) each. Four sections per township were reserved for the use of the United States, and one to provide moneys for public schools. Over time, U.S. land policy was modified in a way that tended to promote faster settlement. At first, the United States sold only whole sections, but the minimum dropped steadily, until in 1832 it was possible to buy as little as a sixteenth of a section (40 acres). Across much of the Midwest, the landscape had been transformed by a proliferation of square-shaped family farms of 80 or 160 acres, as well as much larger estates. In 1820, the minimum per-acre price, which would become a sort of national institution in itself, was set at $1.25, down from the $2.00 level established in 1790. In 1854, a longstanding Jacksonian land policy initiative was instituted by Congress with a Graduation Act, which allowed reduction of price on unsold public lands to as little as $0.125, or one-tenth the normal minimum. Thus well before the Homestead Act and Morrill Act were passed by the Republican-dominated Congress during the Civil War, national state policy favored both rapid settlement and the use of public lands to fund education. The massive project of converting territory into land was managed in large part by one of the most important of early American state institutions, the General Land Office. Established in 1812 under the Treasury Department, the Land Office was faced immediately with a major jump in land sales, promoted in part by the acquisition of new lands formerly held by Native Americans, by treaty and by force, during the War of 1812. By 1818, the Land Office’s Washington headquarters employed twenty-three clerks, one of the largest clerical forces of the day. Overseeing a minor mountain of paperwork, Land Commissioner Josiah Meigs found himself signing his name on roughly 10,000 documents a month. Two decades later, in 1837, there were sixty-two district land offices across the country, along Cambridge Histories Online © Cambridge University Press, 2008 30 Mark R. Wilson with seven surveying districts. By then, the Land Office’s surveyors ranked among the leading government contractors of the day; its district registers and receivers, who earned commissions on land sales, were – no less than territorial judges and justices of the peace – some of the most powerful men in the territories. In 1835–36, one of the great land booms of the century, the national state was selling off between 1 million and 2 million acres a month. Along with the postal and military departments, the Land Office was another national state institution conducting economic enterprise on a scale far larger than any private sector institution. To some degree, certainly, the land business may be understood as a kind of negative state enterprise, in which immense national resources were quickly privatized. In the half-century from 1787 to 1837 alone, the United States sold 75 million acres. But the notion of privatization takes account of only one side of early American statecraft in this field. As early as the 1790s, Washington and Jefferson understood that, by promoting settlement on its frontiers, the American state might achieve a more thorough consolidation of territory than it could ever hope for through direct military action and at far less expense. After the Louisiana Purchase, the paramilitary dimension of the state’s pro-settler land policy became even more important. Occasionally this dimension became explicit, as in the so-called Armed Occupation Act of 1842, which granted 160 acres to any civilian who agreed to settle and fight for five years in Florida, where the Seminoles were continuing to mount the most successful military resistance to Jackson’s removal policy. The military dimension of early land policy was also evident in the association during this era between military service and government land grants. During the Revolutionary War, several states, as well as the federal government, promised land grants to soldiers. For veterans of that conflict, the compensation in land was eventually complemented by cash pensions. In the years following the Pension Act of 1818, pensions for Revolutionary War veterans regularly accounted for more than 10 percent of all federal outlays. Men who served in subsequent antebellum conflicts did not receive federal cash pensions and got land alone. Soldiers in the War of 1812 received more than 29,000 warrants, involving 4.8 million acres. During the MexicanWar, in 1847, Congress passed the Ten Regiments Act, which compensated just one year of military service with 160 acres of land located anywhere in the public domain. Soon after the Mexican War, veterans of the War of 1812 convinced Congress to award them more land as a sort of quasi-pension. Together with the Ten Regiments Act, new Congressional statutes in 1850, 1852, and 1855 generated a total of 552,511 land warrants for veterans, involving 61.2 million acres. The explicitly paramilitary dimension of this element of U.S. land policy and settlement can be exaggerated, since many veterans never moved west but simply sold their Cambridge Histories Online © Cambridge University Press, 2008 Law and the American State, from the Revolution to the Civil War 31 warrants to brokers; furthermore, plenty of land was available outside the military warrant system. But these land grants can be seen as an important early form of militarily inflected national social policy, as well as a major part of antebellum land policy. Favored initially as a cheap enticement to enlistment, the military warrants took on a new significance over time as they served increasingly as a manifestation of the national state’s acceptance of its special obligations to a certain class of citizens. During the 1850s, even as Congress was granting unprecedented amounts of land to military veterans, the national state’s territorial policies became the center of a political crisis that led directly to the Civil War. This well-known chapter in American history was written as a result of the intersection of the fields of population, political economy, and territory that have been discussed above. While the numbers of Northerners dedicated to the abolition of slavery were not nearly enough to win a national election or back a major war effort, many more Northerners objected to the changes in U.S. territorial policy in the 1850s, in which the American state openly endorsed slavery as a national institution. During the MexicanWar the U.S. House had twice passed the so-called Wilmot Proviso, which, taking the Northwest Ordinance as a model, would have prohibited slavery in the vast new territories then being seized from Mexico. Blocked repeatedly in the Senate by John C. Calhoun – once a leading nationalist state-builder following theWar of 1812, now the country’s leading spokesman for states’ rights – theWilmot Proviso divided the country and the national political parties sharply along regional lines. Apparently a desert wasteland, with the exception of the Pacific Coast and the California gold fields, the massive new territorial acquisition that came from the Mexican War created great stresses on the American state. In the famous Compromise of 1850, Congress agreed to admit California as a new free state, but allowed the settlers of the large new Utah and New Mexico territories to decide whether to permit slavery. For any Americans familiar with maps of the continent, this evidently challenged a thirty-yearold policy in which it appeared that slavery would be banned in western territories located north of an imaginary line extending westward from Missouri’s southern border. In 1854, the Kansas-Nebraska Act more directly cancelled the territorial policy on slavery enacted in the Compromise of 1820, by allowing “popular sovereignty” to decide the issue in the Kansas territory, which lay well above the 36◦30 parallel. The new policy proved to be a disaster. Pro-slavery and anti-slavery settlers flooded into Kansas, where they prepared rival constitutions and, on more than one occasion, killed one another. In 1857, following the Supreme Court’s Dred Scott decision, President Buchanan endorsed the proslavery Lecompton constitution. At the same time, concerns about Mormon Cambridge Histories Online © Cambridge University Press, 2008 32 Mark R. Wilson theocracy in Utah territory led Buchanan to order a major U.S. army march westward from Kansas. Military logistics were already the biggest item in the federal budget. Buchanan’s Utah campaign only heightened the fiscal strains associated with managing the new territories. When the economy entered a severe recession at the end of 1857 and a new Utah Expedition was mounted in 1858 to reinforce the first one, fiscal difficulties increased markedly. The Utah dispute was settled peaceably, but the expeditions drained the Treasury and bankrupted the nation’s leading military contractor. After he conducted a vain and illegal effort to assist the contractor, the Secretary of War was forced out. By the end of the 1850s, disputes over U.S. territorial policy had not only reshaped party politics along sectional lines, they had also undermined many of the early American state’s most important institutions. CONCLUSION The CivilWar tested and transformed the American state. But it did so to a lesser extent than one might have expected, in part because of the antebellum developments described here. In the fields of population, economy, and territory, many of the same state institutions that had been so important between the Revolution and the Civil War continued to be key nodes of state action during the war years of 1861–1865 and beyond. While the war gave rise to many changes in American government, those innovations were shaped and in the long run constrained by the antebellum state order. The secession of Southern states in 1860–61 challenged the territorial integrity of the nation that had been expanding over the previous eighty years. The North’s willingness to fight suggested that territorial integrity was important to many Americans. It was no accident that the war started not over a conflict between two of the various states, but rather with the crisis at Fort Sumter, part of the continental network of military installations maintained by the national state. To fight the war, the North drew on the officer corps and national military bureaucracies that had been schooled and refined during the antebellum expansion of continental empire. The South, which was able to tap part of the same officer corps, created military organizations virtually identical to those of the North.Whenthe Union won the war after four years, a single national state regained territorial mastery. Postbellum territorial consolidation, which concentrated to a remarkable degree not on the South but on theWest, followed antebellum precedents. In the field of political economy, the Civil War mobilization challenged governments in both North and South. While the two sides’ economic capacities were far apart, the differences in their mobilization styles should not be exaggerated. Certain aspects of the Confederate mobilization, Cambridge Histories Online © Cambridge University Press, 2008 Law and the American State, from the Revolution to the Civil War 33 including state enterprise in ordnance manufacture and regulation of prices and labor markets, appear to resemble the kind of state-managed efforts that would be seen in the World Wars of the twentieth century. But there was also a remarkable lack of central coordination in the South, evident in its chaotic fiscal policy and the resistance of individual states to central authority. In the North, by contrast, the national state quickly took many supply and fiscal concerns out of the hands of the various states. And while the North had the luxury of a large, diverse economic base, filled with thousands of potential private contractors, it – no less than the South – created a mixed war economy. In several of the largest war industries, including those that supplied small arms, ammunition, uniforms, and ships, stateowned and operated facilities manufactured a quarter or more of the goods consumed by the Union armies. The North’s supply system was overseen largely by career military officers, rather than businessmen. It was financed by a new national income tax and the unprecedented popular war bond drive. Thus while the Northern state lacked many of the powerful wartime administrative mechanisms that the United States would create during the WorldWars – boards to control prices, allocate raw materials, and renegotiate contracts – it nevertheless played a substantial managerial role in the war economy of 1861–65. One of the most important effects of the CivilWar was to remind Americans of the potent authority of government, which from 1861 to 1865 demanded hundreds of thousands of soldiers and hundreds of millions of dollars. Although only about 10 percent of the nearly three million Southern and Northern men who served as soldiers were formally drafted under new conscription laws, many more were pulled into the armies by bonuses paid by national, state, and local governments. (In the North alone, bonuses totaled roughly $500 million, compared with about $1 billion in soldiers’ regular pay.) During the war, many county governments, especially, found themselves borrowing unprecedented sums to provide extra compensation to soldiers and their families. In the decades that followed the war, the national state led the way in providing yet another form of additional compensation: military pensions. Anticipated by antebellum precedents, the Civil War pension system reached an entirely new scale. By the early 1890s, the United States was paying pensions to nearly one million Union veterans, absorbing more than 40 percent of the national state’s income. The Pension Bureau inWashington, which employed more than 2,000 people, then qualified, according to its chief, as “the largest executive bureau in the world.” Accompanying the wartime expansion of the state that came with the mobilization of men and materiel was the rise of the kind of activist, prodevelopmental national state that some Whigs had dreamed of during the Cambridge Histories Online © Cambridge University Press, 2008 34 Mark R. Wilson antebellum period. During the war years, the U.S. Congress enacted a high tariff, issued large land grants for Pacific railroads and state colleges, and created the Department of Agriculture. Another important wartime innovation, symbolically and substantively, was the greenback – a new national currency that replaced the bewildering array of notes that had been issued by banks across the country during the antebellum period. The new paper money was circulated through a new national banking system, yet another creation of the Republican-dominated Congress. While the national bank network did not have the controlling authority that would be created a half-century later in the Federal Reserve system, and while banks chartered by the various states continued to be important parts of the American economy, the war marked a distinct break away from the radically decentralized Jacksonian financial system. The state’s wartime financial requirements, met almost entirely at home rather than in Europe, also fueled the growth ofWall Street, which became increasingly interested in the activities of the Treasury. While the CivilWar partially transformed the American political economy, it was in the field of population that it had – in the short and long run, if not in the medium run – its most revolutionary effects. The Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution banned slavery, created a new category of national citizenship in which African Americans were included, and appeared to proscribe racial discrimination at the ballot box. Briefly, the United States during the 1860s and 1870s saw an extraordinary political revolution occur, as African Americans became not only voters but also important leaders at all levels of government across the South. By the end of the century, however, African Americans would lose much of what they had appeared to gain just after the Civil War. Due in part to the counterrevolutionary activities of Southern whites, their loss also came about as a result of Northerners’ sh,allow commitment to Reconstruction – surely the consequence of the enduring institutionalized racism that had prevailed across the nation for generations before the war, a racism assiduously encouraged by the state at all levels. In 1867, Illinois Congressman Lewis Ross harkened back to “the earlier and better days of the country, when the Democratic party was in power,” when “we had a Government resting so lightly on the shoulders of the people that they hardly knew they were taxed.” For Ross and his party during Reconstruction, and for others in subsequent years who wanted to limit the powers of the national state, it was important to promote an understanding of American political and legal history in which government (especially central government) had always been puny and punchless. But that understanding is simply incorrect. It owes as much to the fantasies of anti-statists – including white supremacists in Ross’s day and champions Cambridge Histories Online © Cambridge University Press, 2008 Law and the American State, from the Revolution to the Civil War 35 of “free enterprise” in the twentieth century – as it does to the historical record. Taxes were indeed relatively low in the early United States, but the powers and achievements of the state were considerable. Slavery and white privilege, while antedating the Revolution, were reproduced energetically by new laws. Popular suspicion of concentrated governmental power may have been widespread, as the success of the Jeffersonians and Jacksonians suggested, but all levels of American government raised large sums for public works. Many critical industries and services, including transport, communications, education, scientific research, and security, were managed on a large scale by public, as well as private, authorities. Far from anarchic, the trans-Mississippi West, no less than the East, was explored, surveyed, and maintained by governmental organizations and laws. Even acknowledging all this evidence of a robust state in the early United States, some may maintain that the state was still insignificant in relative terms. A cursory examination suggests that, even in comparison to the most powerful European states of the era, the state in the early United States was not especially impotent or anomalous. In the realm of political economy, much of the nationalization and heavy regulation undertaken by European states that diverged from American practice began in the second half of the nineteenth century, not in the first. Similarly, it was largely in the second half of the century that the modern British and French empires took shape; before 1850, the consolidation of the U.S. continental empire suggested that American achievements in military conquest and territorial administration were no less considerable than those of other leading powers, even if they cost less. Finally, the early American state was evidently at least as energetic as its European peers in measuring its population and discriminating legally among different classes of persons. When it comes to government, there was no original age of American innocence. To the extent that the American state can be understood today as exceptional relative to its peers around the world, it owes its distinctiveness more to the developments that would come after 1865 than to its early history. Cambridge Histories Online © Cambridge University Press, 2008 2 legal education and legal thought, 1790–1920 hugh c. macgill and r. kent newmyer The years from 1790 to 1920 saw the transformation of American society from an agrarian republic of 4 million people huddled on the Atlantic seaboard to a continental nation of some 105 million people, recognized as the dominant financial and industrial power in the world. Legal education (and legal culture generally) responded to and reflected the historical forces behind this radical transformation. In 1790, aspiring lawyers learned law and gained admission to practice by apprenticing themselves to practicing lawyers. Law office law unavoidably tended to be local law. By 1920, 143 law schools (most affiliated with universities) dominated – indeed, all but monopolized – legal education and were close to controlling entry into the profession. Through their trade group, the Association of American Law Schools, and with the support of the American Bar Association, they had by the beginning of the 1920s created the institutional mechanisms for defining, if not fully implementing, national standards for legal education. In legal education as in many other areas of American society, institutionalization and organization were the keys to power, and power increasingly flowed from the top down. The normative assumptions of this new educational regime emanated from the reforms first introduced by Dean Christopher Columbus Langdell at Harvard Law School in 1870. Langdell’s ideas were stoutly resisted, initially even at Harvard. They were never implemented anywhere else in pure form, and they were rooted more deeply in tradition than Langdell acknowledged. Nevertheless, his institutional and pedagogic innovations became the common denominator of modern legal education. Langdell’s success owed much to the congruence of his ideas with the version of legal science prevailing in the late nineteenth century. No less important, it responded to the changing nature of legal practice in the new corporate age: a shift from courtroom to board room, from litigating to counseling, from solo and small partnership practice to large law firms. More generally, Langdell’s reforms at Harvard were symbiotically connected to the demographic, intellectual, 36 Cambridge Histories Online © Cambridge University Press, 2008 Legal Education and Legal Thought, 1790–1920 37 political, and economic forces of modernization at work as the nineteenth century ended. Our goal, hence, is to describe and analyze legal education as it responded to (and influenced) these transformative changes. I. THE COMMON LAW FOUNDATION: LEGAL EDUCATION BY APPRENTICESHIP No single factor had greater impact on American legal education than the transplantation of the English common law to America. Sizeable portions of English law had to be modified or jettisoned to fit American circumstances, but what remained as bedrock was the adversary system of dispute resolution. In this common law system, a lawyer was a litigator. It followed that the primary objective of legal education – first in England and then in America – was to teach lawyers the art of arguing cases in court. From the outset, practicing law took precedence over theorizing about it. What better way of learning the practical skills of lawyering than by studying those who practiced them on a daily basis? Apprenticeship training was essentially learning by doing and by observing, and in both the burden rested mainly on the student. Even after law-office training was supplemented by a few months in a proprietary or university law school, an opportunity increasingly available by the middle decades of the nineteenth century, legal education remained largely autodidactic. Apprenticeship was the dominant form of legal education in British North America from the outset, although a few sons of the well-to-do, chiefly from the Southern colonies, attended one of the four English Inns of Court. English legal education carried considerable cachet even though by the eighteenth century, when American students began to appear in London, the Inns had deteriorated into little more than exclusive eating clubs. They left no mark on legal education in the United States, except to generate a negative reaction to anything suggesting a national legal aristocracy. Even in England, real instruction in law took place in the chambers of barristers and solicitors. The rules governing apprenticeship training in America, like those governing admission to practice, were established by the profession itself – by judges in conjunction with local associations of lawyers. In new states and territories, where the profession itself was ill defined, the rules were fewer and less likely to be enforced. In most states, students were required to “read” law in the office of a local lawyer of good standing. Three years of reading appears to have been the norm, though time spent at one of the early law schools counted toward the requirement. Fees paid by apprentices, set informally by the bar, generally ranged between $100 and $200, but in practice the amount and means of payment were up to the lawyer. The Cambridge Histories Online © Cambridge University Press, 2008 38 Hugh C. Macgill and R. Kent Newmyer level of literacy expected of apprentices probably excluded more aspirants than the schedule of fees, which was flexible and often laxly enforced. Students were admitted to the bar after completing the required period of reading and passing a perfunctory oral examination, generally administered by a committee of lawyers appointed by the local court. Occasionally an effort might be made to make the examination a real test, as when the famed Virginia legal educator George Wythe opposed, unsuccessfully, the admission of Patrick Henry (who became a leader of the Richmond bar). Since apprentices were sons of people known in the community and known to their mentors, the examining committee was unlikely to offend a colleague by turning down his prot´eg´e. Few students who fulfilled the terms of apprenticeship, had a nodding acquaintance with Blackstone’s Commentaries, and were vouched for by their sponsors failed to pass. Admission to appellate practice as a rule came automatically after a prescribed period of practice in the trial courts. Immediately prior to the Civil War even these minimal standards were subject to dilution. In Lincoln’s Illinois, for example, the price of a license for one lucky candidate was a dinner of oysters and fried pigs’ feet. As Joseph Baldwin put it in The Flush Times of Alabama and Mississippi (1853), “Practicing law, like shinplaster banking or a fight, was pretty much a free thing. . . . ” The popularity of “Everyman His Own Lawyer” books during this period makes the same point. Admission to practice was less a certification of the applicant’s knowledge than an opportunity for him to learn on the job. Compared with legal education in eighteenth-century England or twentieth-century United States, law-office education was strikingly egalitarian. Even at its most democratic, however, the system was not entirely open. To women and black Americans, it was not open at all, exclusions so rooted in the local culture (like apprenticeship itself ) that no formal rules were required to enforce them. Though not based on class distinctions, the system operated to favor the sons of well-connected families. Fees were beyond the reach of most working-class young men; for those who could afford them, it was advantageous to read with the best lawyers, in the best offices, with the best libraries. Most of GeorgeWythe’s students atWilliam and Mary, for example, were from Virginia’s ruling class. Their Northern counterparts who could study at Harvard with Joseph Story and Simon Greenleaf also had a leg up on their competition. Access to the profession, and success within it, depended on being literate, articulate, and disciplined – qualities difficult to develop for those on the margins of American society. Still, judging by the large number of lawyers who achieved eminence without benefit of social advantage, professional status had less to do with pedigree than with success in the rough-and-tumble of circuit-riding and courtroom competition. Cambridge Histories Online © Cambridge University Press, 2008 Legal Education and Legal Thought, 1790–1920 39 Though comparatively open to achievement, apprenticeship was also open to abuse. Often the most able jurists did not have the time to devote to their apprentices: consider for example the complaint of one of James Wilson’s students that “as an instructor he was almost useless to those who were under his direction.”1 Many lawyers had neither the knowledge nor the ability required to teach others. At the worst, they simply pocketed student fees and exploited their apprentices as cheap labor for copying contracts, filing writs, and preparing pleas. The learning-by-suffering approach was justified on the grounds that students were actually mastering the rudiments and realities of practice. In fact, even this modest goal was not always reached; witness the confession of John Adams that, after completing his apprenticeship, he had no idea how to file a motion in court. The chief weakness of law-office education did not lie in the practical matters of lawyering, however, but in its failure to teach law as a coherent system – or, as contemporaries liked to say, as a science. James Kent’s description of his apprenticeship in Poughkeepsie, New York, in the 1780s identified the problem and the solution. Kent received no guidance from Egbert Benson, attorney general of NewYork, to whom he had been apprenticed by his father. Unlike his officemates, however, who spent much of their time drinking, Kent plunged into Blackstone’s Commentaries on his own. Mastery of Blackstone brought order out of the chaos of case law and, as he later claimed, launched him on the road to success. Kent repaid the debt by writing his own Commentaries on American Law, a work designed to do for American lawyers in the nineteenth century what Blackstone had done for him in the eighteenth. For the great mass of American law students who lacked Kent’s discipline and thirst for knowledge, the apprenticeship system did not deliver a comprehensive legal education. Neither, however, did it exclude them from practice. Indeed, apprenticeship education, like the common law itself, fit American circumstances remarkably well. A system that recognized no formal class distinctions and placed a premium on self-help resonated with American egalitarianism. Even the local character of law-office training, a serious weakness by the late nineteenth century, had its uses in the Early Republic because it guaranteed that legal education would respond to the diverse, and essentially local, needs of the new nation. What Daniel Webster learned in the law office of Thomas W. Thompson in Salisbury, New Hampshire, for example, prepared him to serve the needs of farmers and merchants in the local market economy of the hinterland. His later education, in the Boston office of Christopher Gore, with its well-stocked library, was equally suited to practice in the state and federal courts of that major commercial center. Gore’s students could also learn by watching 1 Quoted in CharlesWarren, History of the American Bar (Cambridge, MA, 1912), 167. Cambridge Histories Online © Cambridge University Press, 2008 40 Hugh C. Macgill and R. Kent Newmyer Boston’s leading lawyers in action, whether in the Supreme Judicial Court of Massachusetts, the federal district court of Judge John Davis, or Justice Joseph Story’s U.S. Circuit Court. A legal education for students in Richmond in the 1790s similarly included the opportunity to observe appellate lawyers like John Marshall and John Wickham argue cases before Judge Edmund Pendleton and Chancellor GeorgeWythe. The law they learned – English common law and equity adjusted to plantation agriculture and chattel slavery, operating in an international market – suited the needs of the Old Dominion. Whether in Salisbury or Boston, New York or Poughkeepsie, Richmond, Baltimore, or Philadelphia, apprenticeship training adapted itself to American circumstances, even as those circumstances changed. By failing to teach legal principles, the system at least avoided teaching the wrong ones. Circumstance more than deliberate planning assured that American legal education in its formative years, like American law itself, remained openended, experimental, and practical. II. THE AMERICAN TREATISE TRADITION Apprenticeship education received a bracing infusion of vitality from the spectacular growth of American legal literature. Through theWar of 1812, American law students educated themselves by reading mainly English treatises. What they read varied from region to region and indeed from law office to law office, but the one work on every list was Sir William Blackstone’s four-volume Commentaries on the Laws of England. Published in 1764, the work was quickly pirated in the American colonies. It went through many American editions, beginning with that of St. George Tucker, published in Richmond in 1803, which was tailored to American circumstances and annotated with American cases. A staple of legal education until the 1870s, Blackstone’s Commentaries did more to shape American legal education and thought than any other single work. Blackstone’s permeating influence was ironic and paradoxical. A Tory jurist, he celebrated Parliamentary sovereignty at the very time Americans were beginning to challenge it. His subject was English law as it stood at mid-eighteenth century, before the modernizing and destabilizing effects of Lord Mansfield’s new commercial doctrines had been felt. Even as a statement of English law circa 1750 the Commentaries were not entirely reliable. In any case, English law was not controlling in the courts of the new republic. Despite these limitations Blackstone remained the starting point of legal education and legal thought in America from the Revolution to the Civil War. Law teachers could select the portions of the four volumes that fit Cambridge Histories Online © Cambridge University Press, 2008 Legal Education and Legal Thought, 1790–1920 41 their particular needs and ignore the rest, a case in point being Henry Tucker’s Notes on Blackstone’s Commentaries (1826), prepared specifically for the students at his law school in Winchester, Virginia. For book-starved apprentices everywhere, the work was an all-purpose primer, serving as dictionary, casebook, a history of the common law, and guide to professional self-consciousness. Above all, the carefully organized and elegantly written Commentaries imparted to students and established lawyers alike a vision of law as a coherent body of rules and principles – what Samuel Sewall, advising his student Joseph Story, called “the theory and General doctrines” of the law. By providing a rational framework, Blackstone helped law students bring “scientific” order out of case law and offered relief from the numbing tasks of scrivening. With English law rendered by a Tory judge as their guide, American students set out to chart the course of American legal science. To aid them in mapping the terrain, apprentices were advised to keep a commonplace book – a homemade digest of alphabetically arranged legal categories including relevant case citations, definitions, and other practical information. Students often supplemented Blackstone by consulting such works as Matthew Bacon’sANew Abridgement of the Laws (1736), which went through several American editions before being replaced by Nathan Dane’s nine-volume Abridgement of American Law (1826–29). Dane was to Bacon what Kent was to Blackstone; both American transmutations appeared at the end of the 1820s. Among other synthetic works consulted by American students during the late eighteenth and early nineteenth centuries were Thomas Wood’s Institutes of the Laws of England (1722), the forerunner to Blackstone; Rutherford’s Institutes of Natural Law (1754–56); and John Comyn’s Digest (1762–67). Until they were replaced by American treatises in the 1820s and 1830s, continental works in English translation also were frequently consulted for specific doctrines and for general ideas about law. Among the most widely used, especially in regions where maritime commerce made the law of nations relevant to practice, were works by Hugo Grotius, Jean Jacques Burlamaqui, Samuel Pufendorf, and Emmerich de Vattel. Under Joseph Story’s direction, Harvard built a great collection of civil law treatises on the assumption that the common law could profit by an infusion of rationality and morality from the civil law tradition. As it turned out, the practical-minded law students at Harvard were much less interested in comparative law than was their famous teacher. In search of practical, workaday principles of law, students could choose from a surprisingly wide range of specialized treatises – again English at first, but with American works soon following. Although their reading was apt to be limited to the books available in the office where they studied, there were some standard subjects and accepted authorities. At the Cambridge Histories Online © Cambridge University Press, 2008 42 Hugh C. Macgill and R. Kent Newmyer end of the eighteenth century and in the first decades of the nineteenth, serious students were advised to read Hargrave and Butler’s edition of the venerable Coke upon Littleton, a seventeenth-century work so arcane that it brought the most dedicated scholars to their knees. Fearne’s Essay on Contingent Remainders and Executory Devises in its various editions was the classic authority on wills and estates in both England and America. For equity, students had to rely on English treatises until the publication in the 1830s of Story’s commentaries on equity and equity jurisdiction. Given that the formal writ system of pleading survived well into the nineteenth century, practical guides to pleading and practice were essential. One of the most widely used was Chitty’s three-volume The Practice of Law in All of Its Departments, published in an American edition in 1836. Justice-of-the- Peace manuals, on the English models set by John Dalton and Giles Jacob, were standard fare in every part of the country. Case law was central to legal education from the beginning. Prior to the early 1800s, when printed reports of American court decisions first made their appearance, students had to rely on English reports. As a “guide to method and a collection of precedents,” Kent particularly recommended those of Sir Edward Coke, Chief Justice Saunders (in the 1799 edition), and Chief Justice Vaughn. For equity, Kent urged students to consult the Vesey and Atkyns edition of the opinions of Lord Hardwicke. The library of the Litchfield Law School included two dozen sets of English reporters. Once they became available, American judicial decisions gradually displaced English case law as sources of authority, but English decisions continued to be studied and cited for the legal principles they contained until late in the nineteenth century, by no less an authority than C. C. Langdell, the founder of the case method. Attention to English and American reports reminds us of the practical-minded, non-theoretical nature of American legal thought and education during the formative period. Law students were also expected to understand the ethical obligations of the profession, a theme presented in Blackstone’s Commentaries and echoed in countless law books and lawyers’ speeches during the course of the century. What students made of this uplifting professional rhetoric is difficult to say, but clearly the emphasis on the morality of law and the ethics of practice was useful to a profession still in the process of defining and justifying itself. As it turned out, the failure of the apprenticeship system to instill a sense of professional identity was an impetus for the law school movement and the rebirth of bar associations in the 1870s and 1880s. Much more threatening to the apprenticeship system was the exponential growth of printed American judicial decisions – “the true repositories of the law,” as Story called them. Federal Supreme Court reports, available from the beginning, were soon followed by those of the several federal circuit courts. Cambridge Histories Online © Cambridge University Press, 2008 Legal Education and Legal Thought, 1790–1920 43 State reports, beginning with Kirby’s Connecticut reports in 1789, became the norm by the first decade of the nineteenth century. By 1821, Story counted more than 150 volumes of state and federal reports that lawyers needed to consult – enough, he feared, to overwhelm the profession. Each new state added to the problem, as did the growing complexity and quantity of litigation in the wake of the commercial and corporate revolution that began before the CivilWar. In 1859, speaking at the dedication of the law school at the first University of Chicago, David Dudley Field estimated that American lawyers faced no less than two million common law “rules.”2 The struggle to organize this burgeoning body of case law helped shape legal education. Before printed reports, the problem for students was the inaccessibility of judicial decisions; as published reports proliferated, the problem became one of extracting sound principles from them. Commonplacing, a primitive approach to the problem, gave way to the use of English treatises footnoted to American decisions, on the model of Tucker’s Blackstone. These were gradually superseded by domestic treatises, Dane’s Abridgment and Kent’s Commentaries being the most ambitious. Oliver Wendell Holmes, Jr.’s famous twelfth edition of Kent, published in 1873, contained an index of largely American cases that ran to 180 pages of small print. Charles Warren believed that Angell on Watercourses (1824), with “96 pages of text and 246 pages of cases,” may have been the first American casebook.3 Joseph Story, who suggested the case emphasis to Angell, also saw to it that Harvard maintained a complete run of all American and English reports. Extracting principles from this ever-expanding body of decisions, which was the function of treatise writers, also was the chief objective of Langdell’s case method. Working in this mode reinforced the belief that law was autonomous, with a life of its own beyond the efforts of lawyers and judges to make sense of it. As authoritative expositions of legal principles, treatises were the primary means of organizing case law in the nineteenth century. The publishing career of Justice Joseph Story, the most prolific treatise writer of the century, is exemplary. Story’s A Selection of Pleadings in Civil Actions (1805) appeared only one year after Massachusetts began to publish the decisions of its highest court. By his death in 1845, Story had published commentaries on all the chief branches of American law (except for admiralty), each of them focused on principles. By bringing a measure of system and accessibility to his topics, Story pursued the ever-receding goal of a nationally 2 David Dudley Field, “Magnitude and Importance of Legal Science,” reprinted in Steve Sheppard, ed., The History of Legal Education in the United States: Commentaries and Primary Sources (Pasadena, CA, 1999), 658. 3Warren, History of the American Bar, 541. Cambridge Histories Online © Cambridge University Press, 2008 44 Hugh C. Macgill and R. Kent Newmyer uniform common law. Updated regularly in new editions, Story’s volumes were standard reading for law students and practicing lawyers into the twentieth century. Abraham Lincoln, himself a successful corporate lawyer, said in 1858 that the most expeditious way into the profession “was to read Blackstone’s Commentaries, Chitty’s Pleading, Greenleaf’s Evidence, Story’s Equity and Story’s Equity Pleading, get a license and go to the practice and still keep reading.”4 Lincoln’s comment highlights two major characteristics of apprenticeship training: first, it was largely a process of self-education that continued after admission to practice; and second, self-education consisted mainly in reading legal treatises. The period from 1830 to 1860 in particular was “one of great activity and of splendid accomplishment by the American law writers.”5 Merely to list some of the most important of their works suggests the variety of material available to law students and lawyers. Angell and Ames’s The Law of Private Corporations (1832) was the first book on corporate law. Story’s treatises – Bailments (1832), Agency (1839), Partnership (1841), Bills of Exchange (1843), and Promissory Notes (1845) – made new developments in commercial law available to students and lawyers all over the country and remained authoritative for several generations. Greenleaf’s Evidence (3 vols., 1842–53), recommended by Lincoln, had an equally long life. Parsons’s highly regarded book on contracts, published in 1853, went through nine editions and was followed by several treatises on commercial paper. Hilliard’s Real Property (1838) quickly replaced previous books on that subject. Angell on Carriers (1849) was followed by Pierce’s even more specialized American Railway Law (1857). Treatises on telegraph, insurance, copyright, trademark and patent law, and women’s property rights literally traced the mid-nineteenth-century contours of American economic modernization. And so it went: new books on old subjects, new books on new subjects. Thanks to the steam press, cheap paper, new marketing techniques, and the establishment of subscription law libraries in cities, these books circulated widely. New treatises gave legal apprenticeship a new lease on life. So did university law lectureships and private and university-based law schools, both conceived as supplements to apprenticeship training. The treatise tradition, which did so much to shape law-office education, also greatly influenced the substance and methods of instruction in early law schools. 4 Terrence C. Halliday, “Legal Education and the Rationalization of Law: A Tale of Two Countries – The United States and Australia,” ABFWorking Paper #8711. Presented at the 10th World Congress of Sociology, Mexico City, 1982. 5 Charles Warren, History of the Harvard Law School (New York, 1908), I, 260. Cambridge Histories Online © Cambridge University Press, 2008 Legal Education and Legal Thought, 1790–1920 45 III. AMERICAN LAW SCHOOLS BEFORE 1870 Langdell’s reforms at Harvard Law School in the 1870s are generally seen as the beginning of modern American legal education, but Harvard under Langdell was built on a foundation laid by Story. As Supreme Court justice and chief judge on the New England circuit, with close personal connections to the leading entrepreneurs of the region, Story was attuned to the economic transformation of the age. As Dane Professor, he was in a position to refashion legal education to fit the needs of the market revolution. Dynamic entrepreneurs operating in the nascent national market needed uniform commercial law if they could get it, consistency among state laws if they could not. At the least, they needed to know the rules in each of the states where they did business. The emergence in the nineteenth century of a national market economy generated many of the same opportunities and challenges presented by globalization in the twenty-first. The question was whether lawyers trained haphazardly in local law offices could deliver. Could they master the new areas of law that grew from technological and economic change? And, even with the help of treatises, could they extract reliable, uniform principles from the ever-growing body of decisional law? Increasingly the answer was no, which explains the remarkable expansion of free-standing and university-based law schools in the antebellum period. Public law schools connected with established colleges and universities – ultimately the dominant form – traced their origins to university law lectureships. The model was the Vinerian professorship at Oxford, of which Blackstone was the most famous incumbent. The first law lectureship in the United States was established at the College of William and Mary in 1779 by Governor Thomas Jefferson. Others followed at Brown (1790), Pennsylvania (1790), King’s College (Columbia) (1794), Transylvania University in Kentucky (1799), Yale (1801), Harvard (1815), Maryland (1816), Virginia (1825), and New York University (1835). These lectureships addressed the perceived failure of the apprenticeship system to teach law as a system of interrelated principles. Their success defies precise measurement. Aspiration and execution varied widely, and they were all directed principally at college undergraduates. Judging by the number of his students who later distinguished themselves, GeorgeWythe atWilliam and Mary had considerable influence. On the other hand, James Wilson’s lectures at Pennsylvania, James Kent’s at Columbia, and those of Elizur Goodrich at Yale failed to catch on. Isaac Parker’s lectures as Royall Professor at Harvard inspired little interest, but his experience led him to champion the creation of a full-fledged law school there in 1817. Cambridge Histories Online © Cambridge University Press, 2008 46 Hugh C. Macgill and R. Kent Newmyer The efforts of David Hoffman, a prominent Baltimore lawyer, to do the same at the University of Maryland were unsuccessful, partly because his vision of a proper legal education was too grandiose and partly because American law was changing more quickly than he could revise his lecture notes. Nonetheless, his Course of Legal Study (1817) was the most influential treatise written on the subject of legal education prior to the CivilWar, and it bore witness to the deficiencies of apprenticeship education. These early lectureships pioneered the later development of public, university-based law schools. Private, proprietary law schools also flourished during the years before the Civil War. The prototype of many that followed was the law school founded in 1784 by Judge Tapping Reeve in Litchfield, Connecticut. Reeve, a successful law-office teacher, was joined by a former student, James Gould, who headed the school on Reeve’s death in 1823. In contrast to the haphazard and isolated nature of most apprenticeship arrangements, Litchfield was full-time learning and serious business. During their required fourteen months in residence, students took notes on daily lectures organized on Blackstonian lines. Directed treatise reading was supplemented by moot courts and debating societies. Above all, Reeve and Gould taught legal science. Gould believed that the scientific approach demanded that law, especially the common law, be taught “not as a collection of insulated positive rules, as from the exhibition of it, in most of our books . . . but as a system of connected, rational principles. . . . ” At its peak in 1813, the school had 55 students in residence; by the time of its demise in 1833 it had graduated more than 1,000 students, drawn from every state in the union, including many who went on to eminence in law and politics, Aaron Burr and John C. Calhoun among them. Litchfield was the model for a dozen or more proprietary schools in seven states, and there were other home-grown variations as well. In Virginia, for example, there were several private law schools during the antebellum period. Although none attained the longevity of Litchfield, they attracted a considerable number of students. By 1850 there were more than twenty such schools around the country. Even then, however, they were being outdistanced by the larger and better financed university-based law schools. The last proprietary school on the Litchfield model, in Richmond Hill, North Carolina, closed in 1878. The concept of a full-time law school affiliated with an established university took on new life at Harvard in 1815, when Isaac Parker, Chief Justice of the Supreme Judicial Court, was appointed the Royall Professor, to lecture on law to Harvard undergraduates. The full-time law school began two years later with the appointment of Asahel Stearns as resident instructor. Stearns was simultaneously teacher, adviser, librarian, and administrator; Cambridge Histories Online © Cambridge University Press, 2008 Legal Education and Legal Thought, 1790–1920 47 in addition to being overworked, he was plodding and narrow. Parker was enthusiastic about the new school, but his superficial lectures failed to attract students. Only in 1828, when Justice Joseph Story was appointed Dane Professor, did Harvard Law School come into its own. Under the leadership of Story, Nathan Dane, and Josiah Quincy, Jr., the newly invigorated school set out to train lawyers who would facilitate the Industrial Revolution then underway in New England. Story also hoped that Harvard law students, trained in his own brand of constitutional nationalism, would rescue the Republic from the leveling forces of Jacksonian democracy. Several factors account for the success of the school, starting with Dane’s generous endowment (from the proceeds of his nine-volume Abridgement of American Law). The growing reputation of Harvard in general was advantageous to its law school, as were the cordial relations between Story and Quincy, president of Harvard. As Dane Professor, Justice Story attracted able students from across the nation. A growing student body meant rising income from fees.With fees came a library and a part-time librarian. Under Story’s guidance, the law school began to acquire the materials necessary for the scientific study of American law. A complete and up-to-date run of federal and state reports and a comprehensive collection of American, English, and continental treatises laid the foundation for what Harvard advertised as the best law library in the world. Years later, Langdell would celebrate the library as the laboratory for the study of law. Story built the laboratory. With the appointment of Simon Greenleaf as a full-time resident professor in 1833, the school was up and running. Greenleaf handled the daily administration of the school and much of the teaching. Story focused on the scholarship he was required to produce under the terms of the Dane endowment. In their many editions, his commentaries became standard texts not only for students at Harvard, but for judges and lawyers across the nation, and for the apprentices who studied with them. Measured by the demand for Story’s commentaries in all parts of the country and by the nature of the student body, Harvard Law School was a national law school – the first in the nation. Other antebellum law schools, independent or college based, responded more to the perceived needs of their respective locales. Some, including the Cincinnati Law School, founded in 1833 by Timothy Walker, one of Story’s students, were modeled directly on Harvard, but soon assumed a regional tone. Yale, by contrast, followed a different route (one that would be widely replicated elsewhere) by absorbing Judge David Daggett’s New Haven law school, but no pretense was made of integrating this new initiative with the college, and it would be many decades before Yale had a full-time instructor in law on its payroll. At Jefferson’s insistence, the law department at the newly founded University of Cambridge Histories Online © Cambridge University Press, 2008 48 Hugh C. Macgill and R. Kent Newmyer Virginia aimed to reach students from Southern states with law congenial to Southern interests, including states’ rights constitutional theory. Whatever the dictates of their markets, all of these new law schools, whether in rural Connecticut, the new West, or the Old South, claimed to offer systematic legal instruction that apprenticeship training could not deliver. The impact of the early law schools on legal education is hard to assess because formal instruction was auxiliary to law-office training and because most schools retained many of the practices of the apprenticeship system. And, as one might expect, their quality varied widely. Still, it is reasonable to assume that schools offered students better access to the growing body of treatises and case reports than most law offices could furnish. Students learned from each other and sharpened their skills in the moot court competitions that were common features of school life. The fortunate student might encounter a gifted teacher such as Theodore Dwight. His historically oriented lectures, directed treatise reading, and “oral colloquy,” developed first at Hamilton College in the 1850s and refined at Columbia over three decades, was the accepted standard for first-rate law school training prior to the Langdellian revolution of the 1870s, and for some time thereafter. Dwight at Columbia, like Greenleaf at Harvard and St. George Tucker at William and Mary, was a full-time professor. But the profession of law teacher was several decades in the future. Instruction, even at many of the law schools, generally was offered by judges and lawyers working on a parttime basis. Not surprisingly, they continued to teach law-office law. The substance of law school education prior to the 1870s was intensely practical. Scant attention was paid to legislation, legal theory, comparative law, legal history, or any other discipline related to law. Even dedicated scholarteachers like Story were more interested in the practical applications of law than in investigating its nature and origins. Student opinion forced the University of Virginia’s law department, initially committed to a relatively broad-gauged course of study, to narrow its focus in order to maintain enrollment. Story was forced to modify his ambitious Harvard curriculum for the same reason. Not long after his death, his great collection of civil law treatises was gathering dust on the shelves because students found it of little practical use. In law schools as in law offices legal education was chiefly concerned with preparing students to litigate, and that meant coping with judicial decisions. As early as 1821, Story and Dane had decried the unmanageable bulk of case law. Increased population and the creation of new states and territories helped turn the problem into a crisis that neither law offices nor law schools as then constituted could manage. Cambridge Histories Online © Cambridge University Press, 2008 Legal Education and Legal Thought, 1790–1920 49 IV. THE 1870S: A NEW ORDER STIRS The appointment of Langdell at Harvard in 1870, the turning point in American legal education, was an incident in the emergence of the modern research university. The academy, however, was hardly the only segment of society to be affected by the broad changes that swept through America in the decades following the CivilWar. The reunification of the nation was confirmed by the end of Reconstruction in 1877. The Centennial Exposition of 1876 dramatized the national reach of market economics, bringing the reality of the Industrial Revolution – mass production and consumer culture – to millions for the first time. America celebrated free labor and individualism, but the reality beneath the rhetoric was order at the top imposed on chaos below. Business organizations of increasing scale were among the principal engines of change. The nature and structure of law practice evolved, especially in cities, in response to the changing needs of these lucrative clients. The subordination of courtroom advocacy to the counseling of corporations accelerated, as it became more important to avoid litigation than to win it. Corporate practice called increasingly for legal specialists and larger firms. Bar associations, which had yielded in the 1830s to Jacksonian egalitarianism, began to re-emerge. The Association of the Bar of the City of New York was formed in 1870 in response to scandalous conduct among lawyers during Boss Tweed’s reign and the Erie RailroadWars. In 1872 the Chicago Bar Association was established in an effort to control the unlicensed practice of law. By 1878 there were local or state bar associations in twelve states. In that year, at the prompting of the American Social Science Association, a small group of prominent lawyers convened in Saratoga Springs to form the American Bar Association (ABA). The ABA would follow the lead of the American Medical Association, founded in 1847 (but attaining effective power only at the end of the century), in attempting to define the profession, requirements for entry, and standards for professional work. Comparison between the lofty stature ascribed to the legal profession by Tocqueville and the low estate to which it had fallen furnished the more prominent members of the bar with an additional impetus to action. If membership in the profession was open to people with no more (and often less) than a secondary general education, who had completed no prescribed course of professional training, and who had met risible licensing requirements, then professional status itself was fairly open to question. Unsurprisingly, one of the first subgroups formed within the ABA was the Committee on Legal Education and Admissions to the Bar. Cambridge Histories Online © Cambridge University Press, 2008 50 Hugh C. Macgill and R. Kent Newmyer The significance of Christopher Columbus Langdell’s work at Harvard in the 1870s is best understood in this context. In 1869 CharlesW. Eliot, an analytic chemist from MIT, was appointed president of Harvard. Touring Europe earlier in the 1860s, Eliot had been impressed by the scientific rigor of continental universities. To make Harvard their peer, he would “turn the whole University like a flapjack,”6 and he began with the medical school and the law school. To Eliot, the education offered at both schools was so weak that to call either profession “learned” bordered on sarcasm. He brought both confidence and determination to the task of reform. When the head of the medical school stated that he could see no reason for change, Eliot replied, “I can give you one very good reason: You have a new president.” The law school Eliot inherited, in common with the thirty others in operation at the time, was intended to supplement apprenticeship, not to replace it. It had no standards for admission or, other than a period in residence, for graduation. The library was described as “an open quarry whence any visitor might purloin any volume he chose – provided he could find it.”7 Its degree was acknowledged to be largely honorary. To dispel the torpor, Eliot appointed Langdell first to the Dane professorship and then to the newly created position of dean. Langdell, an 1854 graduate of the law school, had twelve years’ experience in appellate practice in Manhattan, which convinced him that legal reform was urgently needed and that it should begin with legal education. Eliot’s offer gave him a chance to implement his ideas. Langdell saw law as a science whose principles had developed over centuries through judicial decisions.Aproperly scientific legal education would study those principles through the decisions in which they had evolved. The scholar’s attention must be focused on the best decisions of the best judges, for “the vast majority are useless, and worse than useless, for any purpose of systematic study.” An amateur botanist, Langdell added a taxonomical dimension: If the doctrines of the common law “could be so classified and arranged that each should be found in its proper place, and nowhere else, they would cease to be formidable from their number.”8 Because it was a science, all of its ultimate sources contained in printed books, law was a fit subject for study in a modern university, especially one designed by Charles W. Eliot. Indeed, because it was a science, it could only be mastered by study in a university, under the tutelage of instructors who had studied those sources systematically, working in a library “that is 6 Dr. Oliver Wendell Holmes, Sr., quoted in Warren, History of the Harvard Law School, I, 357. 7 Samuel L. Batchelder, “Christopher C. Langdell,” Green Bag, 18 (1906), 437. 8 C. C. Langdell, A Selection of Cases on the Law of Contracts (Boston, 1870), viii. Cambridge Histories Online © Cambridge University Press, 2008 Legal Education and Legal Thought, 1790–1920 51 all to us that the laboratories of the university are to the chemists and the physicists, all that the museum of natural history is to the zoologists, all that the botanical garden is to the botanists.” To put Langdell’s premises about law and its study into practice, the Harvard Law School had to be reformed institutionally and intellectually. Langdell inaugurated a structured and sequenced curriculum with regular graded examinations, offered over two years of lengthened terms that would increase to three years by 1878. Treatises would be replaced by books of selected cases (to alleviate pressure on the library), and lectures by the classroom give-and-take that became “the Socratic method.” Apprenticeship, fit only for vocational training in a “handicraft,” had no place at all. The law to be mastered was common law, judge-made law, and above all private law – contracts, torts, property. The principles to be found in appellate cases were general, not specific to any state or nation. To Langdell, whose generation was the last to study law before the CivilWar, the primacy of the common law was unquestionable. Statutes, unprincipled distortions of the common law, had no place in scientific legal study. Since law was entirely contained in the law reports, it was to be studied as an autonomous discipline, unfolding according to the internal logic of its own principles, largely unaffected by the social sciences, unrelated to social policy, unconcerned with social justice. “Soft” subjects such as jurisprudence (law as it might be, not law as it was) that were impossible to study scientifically were beyond the pale. Because close study of cases, many old and English, might tax students with no grounding in the humanities, the prior preparation of law students assumed a new importance. Initially Langdell raised the general education standard for law school admission to roughly the level required for Harvard undergraduates. By the turn of the century, the standard would become a bachelor’s degree, and gradual adoption of that standard by leading law schools in the early part of the twentieth century would confirm the study of law as a graduate program. Adoption of the case method appeared to require the abandonment of established modes of instruction and the acceptance of a new conception of law. In fact, the new method drew heavily on antebellum legal culture: the assumption that the law was found in judicial decisions, and that legal science consisted in ordering cases under appropriate general principles and relating those principles to one another in systematic fashion. This taxonomic approach could be found in Story’s treatises or Dwight’s lectures at Columbia. The resulting edifice led logically, if not inevitably, to deductive reasoning starting with principles, some as broad as the infinitely disputable concept of justice itself. Langdell stood the old conceptual order on its head, however, by reasoning inductively from the particulars of appellate decisions to general principles – or at least by training students to do so. Cambridge Histories Online © Cambridge University Press, 2008 52 Hugh C. Macgill and R. Kent Newmyer To determine which opinions were worth studying, he had to select those – assertedly few in number – that yielded a “true rule.” A student who had grasped the applicable principle and could reason it out could say with assurance how a court should resolve any disputed question of common law. The essential element of legal education was the process of teasing the principles from the cases assigned. The instructors, however, had first to discriminate the signals from the static, sorting through the “involved and bulky mass” of case reports to select those whose exegesis would yield the principle, or demonstrate the lines of its growth. To develop a criterion for picking and choosing, they had first to have identified the principle. In 1871 a student was no more able to make sense of the mass of reported cases without guidance of some kind than anyone in a later century might make of the Internet without a search engine. Langdell’s selection of cases was that engine. It determined the scope and result of student labor as effectively as though Langdell had taken the modest additional trouble required to produce a lecture or a treatise rather than a collection of cases without headnotes. To have done so, though, would have deprived students of the opportunity to grapple directly with the opinions, the basic material of law, and to master principles on their own, rather than take them at second hand. The intellectual challenge presented to students was therefore something of a simulation, neither as empirical nor as scientific as Eliot and Langdell liked to think it. The fundamental premise, that the common law was built from a relatively small number of basic principles whose mastery was the attainable key to professional competence, may have proceeded from Langdell’s undergraduate exposure to the natural sciences, from the crisis he encountered as a New York lawyer when the common law forms of action gave way to the Field Code, or to the constrained inductivism of natural theology and popular science prevalent when Langdell himself was a student. The latter resemblance may have been in the back of Holmes’s mind when he characterized Langdell as “perhaps the greatest living legal theologian,” who was “less concerned with his postulates than to show that the conclusions from them hang together.”9 The logic of the case method of instruction demanded a different kind of instructor. The judge or lawyer educated under the old methods, no matter how eminent, whether full- or part-time, was not fitted to the “scientific” task of preparing a casebook on a given subject or to leading students through cases to the principles they contained. If law was a science to be studied in the decisions of courts, then experience in practice or on the 9 Book Notice, American Law Review 14 (1880), 233, 234 (reviewing C. Langdell,ASelection of Cases on the Law of Contracts, 2d ed., 1879). Cambridge Histories Online © Cambridge University Press, 2008 Legal Education and Legal Thought, 1790–1920 53 bench was far less useful than experience in the kind of study in which students were being trained. Langdell needed teachers trained in his method, unspoiled by practice – scientists, not lawyers. In 1873, with the appointment of James Barr Ames, a recent graduate with negligible professional experience, Langdell had his first scientist. The academic branch of the legal profession dates from that appointment. As Eliot observed, it was “an absolutely new departure . . . one of the most farreaching changes in the organization of the profession that has ever been made. . . . ” Ames, and Langdell himself, spent much of the 1870s preparing the casebooks needed to fill the added hours of instruction. Ames, warmer and more engaging than Langdell, also became the most effective evangelist for the Harvard model. In 1895 he would succeed Langdell as dean. Eliot’s resolute support of Langdell notwithstanding, he was aware of the hostility of the bar to Langdell’s regime and of the competition from Boston University. He saw to it that the next several appointments went to established figures in the profession, preferably men with an intellectual bent. The Ames experiment was not repeated until 1883, with the appointment ofWilliam R. Keener to succeed Holmes. It had taken more than a decade before Langdell had a majority of like-minded colleagues. Only at Harvard did the case method exist in its pure form, and then only before 1886. For in 1886, Harvard introduced elective courses into the curriculum. The principles of the common law proved to be more numerous than Langdell had anticipated or could cover in a three-year curriculum. Since it could no longer be asserted that mastery of the curriculum constituted mastery of the law itself, the case method of study now required a different rationale. The method, with its intellectual discipline, came to be justified – less controversially – as the best way to train the legal mind. Substance had given way to process. “The young practitioner is . . . equipped with a ‘trained mind,’ as with a trusty axe, and commissioned to spend the rest of his life chopping his way through the tangle.”10 Even the skeptical Holmes had acknowledged, during his brief stint on the faculty, that the method produced better students. Ames contrasted the “virility” of case method study with the passive role of students under the lecture method. A whiff of social Darwinism spiced the enterprise. The ablest and most ambitious students thrived. Survival, and the degree, became a badge of honor. Students and graduates shared a sense of participating in something wholly new and wholly superior. Ames observed that law students, objects of undergraduate scorn in 1870, were much admired by the end of Langdell’s tenure. An alumni association was formed in 1886 to promote the school and to spread the word within the bar that “scientific” 10 Alfred Z. Reed, Training for the Public Profession of the Law (New York, 1921), 380. Cambridge Histories Online © Cambridge University Press, 2008 54 Hugh C. Macgill and R. Kent Newmyer study under full-time academics was also intensely practical. The students who, in 1887, founded the Harvard Law Review (which quickly became one of the most distinctively Darwinian features of legal education) were moved in part by the desire to create a forum for their faculty’s scholarship and a pulpit for propagating the Harvard gospel. In this period Harvard’s enrollment, which had dropped sharply when Langdell’s reforms were introduced, began to recover and to climb, a sign that the severe regimen was reaching a market. As established lawyers gained positive first-hand exposure to the graduates trained on the new model, some of the bar’s initial hostility to Langdell’s reforms abated. Eliot’s gamble was paying off. Langdell’s new orthodoxy was asserted at Harvard with vigor, not to say rigidity, even as its rationale was changing. In the 1890s, when Eliot forced the appointment of an international lawyer on the school, the faculty retaliated by denying degree credit for successful completion of the course. In 1902, William Rainey Harper, president of the new University of Chicago, requested Harvard’s help in establishing a law school. The initial response was positive: Joseph Beale would be given leave from Harvard to become Chicago’s Langdell. But when it was learned that Harper also planned to appoint Ernst Freund to the law faculty, the atmosphere cooled. Freund had practiced law in New York, but he held continental degrees in political science, and he expected Chicago’s new school to offer courses such as criminology, administrative law, and political theory. Harper was informed that the Harvard faculty was unanimously opposed to the teaching of anything but “pure law.” Harvard, wrote Beale, turned out “thoroughly trained men, fit at once to enter upon the practice of a learned and strenuous profession.” “Learned,” to be sure; even “trained”; but “fit” and “strenuous” as well? Purged and purified by the ritual of case study, lean and stripped for the race of life? It is as though Beale saw the muscular Christianity of an earlier day revived in the person of the new-model lawyer, trained in “pure law” and ready to do battle with the complexities of the modern business world. Harvard’s sense of mission had a quasi-religious pitch. Indeed, the young lawyer coming out of Harvard found a fit in the new-model law firm as it developed in response to the needs of corporate clients. An emerging elite of the bar was forging a link with the emerging elite of the academy; “the collective ego of the Harvard Law School fed the collective ego of the bar.” By the early 1890s Harvard graduates were in demand as missionaries to other law schools, frequently at the behest of university presidents anxious to speed their own institutions along the scientific path – new Eliots in search of their own Langdells. Iowa adopted the case method in 1889; Wigmore and Nathan Abbott took it to Northwestern in 1892; Abbott carried the torch on to Stanford. Cambridge Histories Online © Cambridge University Press, 2008 Legal Education and Legal Thought, 1790–1920 55 The tectonic shift occurred in 1891, when Seth Low, recently appointed president of Columbia, forced a reorganization of the law school curriculum, and William Keener, recruited the previous year from Harvard, became dean. Theodore Dwight, the Columbia Law School personified, had long resisted the case method, one of his reasons being the intellectual demands it placed on students. The case method might be all very well for the brightest and most highly motivated, but what of the “middle sort” of student Dwight had taught so successfully for so long? Such softness had no place at Harvard, which shaped its admissions policy to fit its curriculum, not the other way around. Neither did it at Keener’s Columbia after its conversion. The conversion of Columbia, which alternated with Michigan as the largest law school in the country, brought Langdell’s revolution to the nation’s largest market for legal talent. In Keener’s hands, however, the revolution had moderated considerably. He did not condemn all lecturing as such; he pioneered the production of the modern book of “Cases and Materials,” which Langdell would have anathematized; and he acquiesced in Low’s insistence on including political science courses in the curriculum. Even so, Columbia’s conversion met strong resistance. Adherents to the “Dwight method” formed the New York Law School, which immediately attracted an enormous enrollment. Conversions still were the exception, not the rule, even among university law schools. It would be 1912 before members of the Yale law faculty could assign a casebook without the approval of their colleagues and Virginia held out until the 1920s. In the early years of the new century, however, as old deans, old judges, and old lawyers retired and died, their places all across the country were filled by academic lawyers trained in the case method. They developed what Ames had called “the vocation of the law professor” and advanced from school to school along career paths that remain recognizable a century later. Casebook publishers kept their backlists of treatises alive, covering their bets, but the case method and the institutional structures associated with it could no longer be dismissed by the legal profession as a local heresy peculiar to Harvard. Langdell had elaborated and implemented a view of law and legal education that made it a respectable, even desirable, component of the sciencebased model of American higher education. In a period when all of the social sciences were struggling to define themselves as professional disciplines and to succeed in the scramble for a place at the university table, Langdell accomplished both objectives for law as an academic subject. Further, his conception of the subject effectively defined legal knowledge, and his first steps toward the creation of the law professoriate defined the class of those who were licensed to contribute to it. With the case method, moreover, a Cambridge Histories Online © Cambridge University Press, 2008 56 Hugh C. Macgill and R. Kent Newmyer university law school could operate a graduate professional program at the highest standard and, at the same time, maintain a student-faculty ratio that would not be tolerated in most other disciplines. The fee-cost ratio made the expenses of operating a modern law school – the purchase of books, for example – an entirely tolerable burden. Eliot numbered the financial success of the Harvard Law School among Langdell’s great achievements. V. THE ACADEMY AND THE PROFESSION Except for medicine, no other emerging academic discipline was intimately tied to an established and powerful profession. Reform in legal education might build momentum within the upper echelon of American universities, but the extent to which the emerging standards of that echelon could be extended downward depended in part on the organized bar. The postbellum bar association movement, contemporaneous with the rise of law schools, was shaped by a similar desire for the market leverage conferred by professional identity and status. In its first twenty years, the American Bar Association failed to reach a consensus on the form or content of legal education. The Committee on Legal Education and Admissions to the Bar presented to the ABA at its 1880 meeting an elaborate plan for legal education, prepared principally by Carleton Hunt of Tulane. The plan called for the creation of a public law school in each state, with a minimum of four “well-paid” full-time instructors, written examinations, and an ambitious three-year curriculum that owed more to Story, Hoffman, and Francis Lieber than to Langdell. After the “well-paid” language was struck, the entire plan was defeated. One eminent member noted that “if we go farther . . . we shall lose some part of the good will of the legal community.” Most members of that community, after all, had attained professional success without the aid of a diploma. They were unlikely to see why a degree should be required of their successors. Another delegate, mindful of the problems that gave rise to the bar association movement but acquiescing in the result, observed that “we must do something to exterminate the ‘rats.’”11 Chastened, the Committee waited a decade before submitting another resolution. In the interim, the Association turned its attention to a matter of more immediate concern: the wide variations in standards and procedures for bar admission. The movement to replace ad hoc oral examinations with uniform written tests administered by a permanent board of state bar examiners, which began in New Hampshire in 1878, enjoyed the ABA’s 11 Record of the American Bar Association 2 (1880), 31, 41. Cambridge Histories Online © Cambridge University Press, 2008 Legal Education and Legal Thought, 1790–1920 57 support. It may incidentally have increased the demand for a law school education, but was intended to raise standards for entry into the profession. The founders of the ABA appear to have grasped, if intuitively, the profound changes at work in the profession. However, it was more difficult to agree on the role of law schools. Sporadic discussions of the potential role of law schools in raising the tone of the bar were punctuated by skeptical comments about Langdell’s innovations. The mythic figure of Abraham Lincoln loomed behind all discussion of the relative value of formal schooling. How would the Lincolns of the future find their way to greatness if schooling were required for all? It was conceded that schooling could be substituted for some time in a law office and might be a satisfactory alternative, but little real energy was expended on the problems of formal education. A standardized model for education, if it could have been implemented nationally, would have facilitated the admission in every state of lawyers licensed in any one of them. In the long term, it would also have improved the administration of justice. Judges and lawyers, all trained to a similar standard instead of being educated poorly or not at all, would develop a shared language and culture. The mischief of litigation, appeals, reversals and, worst of all, the endless proliferation of decisions, many of them ill considered and inconsistent, would be ameliorated. Law school education might, therefore, have been a large part of the answer to some of the principal concerns of the ABA at its founding. Langdell’s hard-nosed new model for legal education might have furnished the standard. His insistence on the worthlessness of most case law, and the importance of selecting only decisions that reflected the basic principles of the common law, might have been welcomed as a bulwark against the unending flood of decisions, aggravated in the 1880s by the West Publishing Company’s promiscuous National Reporter System. Up to the turn of the century, however, most leaders of the bar had been apprentices. The minority who had been educated in law schools looked to the revered Dwight at Columbia or the eminent Cooley at Michigan, both of them practical men, not to the obscure and idiosyncratic Langdell, aided by “scientists” like Ames. The gap between the profession at large and the academy widened as the teachers grew in number and in professional definition. It would take a generation before market pressures would drive the bar and the new professoriate into each other’s arms. VI. ENTER THE AALS In 1900, appalled by the “rats” in their own business and frustrated by the low priority the ABA attached to the problems of legal education, a group of 35 schools organized the Association of American Law Schools (AALS). The Cambridge Histories Online © Cambridge University Press, 2008 58 Hugh C. Macgill and R. Kent Newmyer membership criteria of the AALS reflected “best practices” and the higher hopes of the founding schools. Members required completion of high school before admission, a hurdle that would be raised first to one, then to two years of college. Members had to have an “adequate” faculty and a library of at least 5,000 volumes. Part-time programs were strongly disfavored, and as a general matter, the cost of compliance excluded the very schools the Association sought to marginalize, if not to drive out of business altogether. But that was just the problem: the marginal schools could not be eliminated, for reasons that were uncomfortable to acknowledge. Law schools organized on Langdell’s principles offered superior students a superior education that was well adapted to the needs of big-city practice. There might be a close fit between Harvard, for example, and the Cravath system, which became as influential in the emergence of the corporate law firm as the case method had become in legal education. But many could not afford that kind of education, and a great deal of legal work did not require it. Most schools paid lip service to the standards of the AALS, and some extended themselves mightily to qualify for membership. A few, however, made a virtue of condemning the elitism of the AALS. Suffolk Law School in Boston, for example, secured a state charter despite the unanimous opposition of the existing Massachusetts law schools. If that lesson in political reality were not sufficiently sobering, Suffolk’s founding dean drove it home with repeated blasts at the educational cartels of the rich, epitomized by Harvard. Edward T. Lee, of the John Marshall Law School in Chicago, contended with considerable persuasiveness that the requisites for teaching law – books and teachers – were readily to be found outside of university law schools, and even in night schools, often at higher levels of quality than that obtained in some of the more rustic colleges. The movement to require two years of college prior to law study would inevitably – and not coincidentally – exclude many of the poor and recently arrived from the profession. Opposing that change, Lee emphasized the religious, ethnic, and national diversity of night school students, declaring that “each of them from his legal training becomes a factor for law and order in his immediate neighborhood. . . . If the evening law schools did nothing more than to help leaven the undigested classes of our population, their right to existence, encouragement, and respect would be vindicated.”12 The scientists and the mandarins were unmoved. These were the principal themes in the educational debate at the turn of the century. Ultimately, every university-affiliated law school in the United States came to adopt some form of Langdell’s model of legal education, but 12 Edward T. Lee, “The Evening Law School,” American Law School Review 4 (1915), 290, 293. Cambridge Histories Online © Cambridge University Press, 2008 Legal Education and Legal Thought, 1790–1920 59 they traveled by routes that varied enormously according to local institutional circumstances, politics, and professional culture. Although no single account can stand for all, the evolution of the law schools at the University ofWisconsin in Madison and Marquette University in Milwaukee, and the strained relations between them, furnishes the best illustration of the practical playing-out of the dynamics at work in legal education at the beginning of the twentieth century. Wisconsin: A Case Study The University ofWisconsin’s 1854 charter provided for a law school, but it was only after the CivilWar that one was established – not on the university’s campus, but near the state capitol so that students could use the state library for free. The law school did not come into being at the initiative of the Wisconsin bar. Rather, the university found it prudent to add a practical course of study in order to deflect criticism of its undergraduate emphasis on the humanities, which some legislators thought irrelevant to the needs of the state. Care was taken to cultivate leading members of the bench and bar, and it was Dean Bryant’s boast that Wisconsin offered the education a student might receive in “the ideal law office.” In a professional world where apprenticeship opportunities were inadequate to meet the demand (and where the invention of the typewriter and the emergence of professional secretaries reduced the value of apprentices), this was not a trivial claim. In 1892, however,Wisconsin installed a new president, Charles Kendall Adams. Adams had taught history at Michigan for more than twenty years before succeeding Andrew Dixon White as president of Cornell. Like Eliot, he had toured European universities in the 1860s and was similarly influenced by the experience. At Michigan, he introduced research seminars, which he called “historical laboratories,” where young historians could work with original documents. Aware of Langdell’s case method and predisposed in favor of the idea of the library as laboratory, Adams set out to bring Wisconsin’s law school up to date. It would have been impolitic to bring in a missionary from Harvard, so Adams hired Charles N. Gregory, a well-connected local lawyer, as Associate Dean. Gregory was charged with remaking the law school, distressing Dean Bryant as little as possible in the process. Gregory spent part of his second summer at the country house of James Barr Ames, now dean at Harvard, where Ames and Keener, now dean at Columbia, drilled him in the case method and the culture that came with it. Gregory did what he could to convertWisconsin, holding off the faculty’s old guard and hiring new people trained in the case method when he had the opportunity, before leaving in 1901 to become dean at Iowa. In 1902, Dean Bryant finally retired, and Cambridge Histories Online © Cambridge University Press, 2008 60 Hugh C. Macgill and R. Kent Newmyer his successor, Harry Richards, a recent Harvard graduate, completed the make-over Gregory had begun. “The ideal law office” was heard of no more. Something resembling Harvard emerged in Madison, andWisconsin was a founding member of the AALS, which Gregory had helped organize. In the mid-1890s, while Gregory labored in Madison, a study group of law students in Milwaukee preparing for the Wisconsin bar examination evolved into the Milwaukee Law School. The school offered evening classes taught by practicing lawyers, held in rented rooms – the classic form of urban proprietary school. In 1908, this start-up venture was absorbed by Marquette University, an urban Jesuit institution that hoped to confirm its new status as a university by adding professional schools in law and medicine. The reaction in Madison to a competitor in the state’s largest city was not graceful. In 1911 Dean Richards attempted to block Marquette’s application for membership in the AALS. He did not do so openly, lest he appear interested solely in stifling competition. In fact the two schools appealed to rather different constituencies. Marquette’s urban, relatively poor, often immigrant, and Catholic students were not Richards’s ideal law students, nor were they his idea of suitable material for the bar. To his distress, Marquette was elected to the AALS in 1912, with adept politicking, compliance with many of the membership standards, and every indication of a disarming desire to meet them all. Richards was skeptical, perhaps with cause, but he lost the round. The following year a bill was introduced in the Wisconsin legislature that would have raisedWisconsin’s educational requirement for admission to the bar and would also have provided a paid secretary for the board of bar examiners. These were reforms that Richards normally would have supported. But the bill, thought to be backed by Marquette graduates, also would have abolished the diploma privilege (admission to the bar on graduation) thatWisconsin graduates had enjoyed since 1870. The privilege was inconsistent with the standards advanced by both the ABA and the AALS, and Wisconsin could hardly defend it on principle. To lose it to a sneak attack from an upstart competitor, however, was a different matter. After an exchange of blistering attacks between partisans of both schools, the bill was defeated. Another conflict erupted in 1914, when the Wisconsin Bar Association became concerned over low ethical standards, “ambulance-chasing,” and comparable delicts. Some of the offending conduct might have been merely the work disdained by the established practitioner, for the benefit of an equally disdained class of clients, but it was not so characterized. Richards proposed to solve the problem by requiring all prospective lawyers to have two years of college preparation, three years of law school, and a year of Cambridge Histories Online © Cambridge University Press, 2008 Legal Education and Legal Thought, 1790–1920 61 apprenticeship. The schooling requirements happened to be those of his own institution, but it was unlikely that Marquette could meet them – nor would it necessarily have wished to. Had his proposal succeeded and Marquette failed, Richards would not have been downcast. Richards was upset over the large enrollment in night law schools (Marquette would offer classes at night until 1924) of people with “foreign names,” “shrewd young men, imperfectly educated . . . impressed with the philosophy of getting on, but viewing the Code of Ethics with uncomprehending eyes.” But theWisconsin bar, its still largely rural membership unaffected by immigration, did not adopt Richards’s proposal. Indeed, it did not accept his premise that increased educational requirements would lead to improved ethical standards. His effort to elevate educational standards, to the disadvantage of Marquette and its ethnically diverse constituents, was dismissed by many as retaliation for the diploma privilege fracas. Richards’s fears and prejudices notwithstanding, this feud was not Armageddon. It was, however, a museum-grade exhibit of the characteristics and developmental stages of two different but representative types of law school: Wisconsin exemplified the twentieth-century shift to technocratic elitism, whereas Marquette represented the nineteenth-century ideal of open, democratic opportunity. Wisconsin, so recently accepted into the Establishment, was especially severe in seeking to impose the Establishment’s standards on a deviant institution. Richards could not see Marquette for what it was. A school open to the urban alien poor, it seemed to him the very nursery of corruption. In reality, Marquette started on a different track altogether, one not marked by Langdell. Had Marquette been thrust into the outer darkness in 1912, its graduates would still have found their way into the profession. If bringing Marquette into the AALS came at some initial cost to the nominal standards of that association, it had the longterm effect of improving, by those standards, the education its graduates received. VII. “STANDARDS” MEET THE MARKET As the “better” schools ratcheted up their entrance requirements (completion of high school, one year of college, two years), increased the length of the course of study (three years was the norm by 1900), and raised their fees along with their standards, a large percentage of a population increasingly eager for a legal education was left behind. Would-be law students excluded from the most prominent schools for want of money, time, or intellectual ability constituted a ready market for schools that were not exclusive at all. In the absence of restrictive licensing standards for the bar or accreditation standards for law schools, that market Cambridge Histories Online © Cambridge University Press, 2008 62 Hugh C. Macgill and R. Kent Newmyer was sure to be met. The number of law schools doubled every twenty years from 1850 to 1910; by 1900, the total had grown to 96. From the beginning of the twentieth century to the end ofWorldWar I, law schools continued to multiply rapidly as demand increased and as unprecedented waves of immigration produced a more heterogeneous population than American society and American educators knew what to do with. The schools that sprang up to meet this market had little in common with the leading schools, and did not care. The “better” schools, though, were troubled indeed. Although enrollment at the established schools grew at a healthy rate, their percentage of the total law student population actually declined. Schools were indeed winning out over apprenticeship, but which schools?Wisconsin’s Richards, president of the AALS in 1915, reported that the number of law schools had increased by 53 percent since the Association was organized in 1900, and the number of students, excluding correspondence schools, had risen by 70 percent. The number of students enrolled in member schools had increased by 25 percent, to 8,652, but enrollment in non-member schools had risen by 133 percent, to 13,233. Member schools accounted for 55 percent of all students in 1900, but for only 39 percent in 1915. Law schools had won the battle with apprenticeship as the path to practice, but the “wrong” schools were in the lead. The universe of academic legal education was divided into a few broad categories. The handful of “national” institutions at the top implemented Harvard’s reforms of a generation earlier and adopted some form of the case method. Sustained by their wealth and prestige, they were not dependent on trade-group support. The next tier, close on their heels, superficially similar but less secure, constituted the bulk of AALS membership. Below them, more modest schools offered a sound legal education to more regional or local markets, on thinner budgets, with uncertain library resources. These schools relied heavily on part-time instruction, and many offered classes at night for part-time law students who kept their day jobs. Many aspired to membership in the AALS and worked so far as their resources permitted to qualify for membership. Then there were the night schools, conscientious in their efforts to train the newly arrived and less educated. And there were proprietary and commercial night schools who simply crammed their customers for the bar examination. The lower tiers would remain as long as they could offer a shorter and cheaper path to practice, and a living for those who ran them, regardless of the standards of their betters. The AALS, acting alone, could not be an effective cartel. Parallel developments in medical education and the medical profession are instructive, and they had a powerful influence on the legal academy and the bar. Through the offices of the Carnegie Foundation (whose president, Henry S. Pritchett, had been, not coincidentally, head of the Bureau of Cambridge Histories Online © Cambridge University Press, 2008 Legal Education and Legal Thought, 1790–1920 63 Standards), Abraham Flexner was commissioned to prepare a study of medical education in the United States. Flexner was a respected scholar, but not a doctor. His independence permitted him to use terms more blunt than the AMA itself dared employ. He grouped medical schools into those who had the resources and will to provide a scientifically sound – i.e., expensive – medical education, those that would like to but lacked the means, and the rest, denounced as frauds. He urged that the middle tier be helped to move up and that the bottom tier be eliminated. Following publication of his report in 1910, this is exactly what happened. Philanthropists and research foundations followed Flexner’s criteria in their funding decisions, putting the leaders still further ahead. State licensing standards were tightened, and the applicant pool for the bottom tier dried up. By 1915 the number of medical schools and the number of medical students had declined sharply. The Carnegie Foundation had already sponsored one study of legal education, a relatively brief report on the case method prepared by Josef Redlich of the University of Vienna after visits to ten prominent law schools. Redlich blessed the method but noted its narrowness, giving some comfort to proponents and detractors alike.13 In 1913, a year before publication of the Redlich Report, the ABA Committee on Legal Education turned again to Carnegie, hoping for a Flexner of its own. Alfred Z. Reed, not a lawyer, was commissioned to study legal education in the United States. He visited every law school in existence at the time, plowed through all available statistical compilations, and analyzed structures, politics, and curricula. Reed admired the achievement of Harvard and the other leading law schools, and acknowledged that the case method succeeded splendidly in the hands of instructors of great ability, teaching well-prepared and able students in first-year courses. It was not clear to him, however, that the method was equally effective in advanced courses or in institutions with thin financial and intellectual resources, whose students might be of Dwight’s “middle sort.” Instead of following Flexner in recommending a one-sizefits- all approach, Reed concluded that the bar, in terms of work done and clients served, was in fact segmented rather than unitary and that legal education should be so as well. He recommended that the role of night schools in preparing those who could not take their professional education on a full-time basis be acknowledged and supported. Expected to condemn the schools that produced the bulk of the dubious applicants to practice, he instead declared that there was both room and need in the United States for lawyers who would not be Tocqueville’s aristocrats and for the schools 13 Josef Redlich, The Common Law and the Case Method in American University Law Schools (New York, 1914). Cambridge Histories Online © Cambridge University Press, 2008 64 Hugh C. Macgill and R. Kent Newmyer that trained them. The Reed Report remains the most comprehensive study of legal education ever conducted. Reed’s research was prodigious and his prose was marvelous, but his recommendations were not wanted and they were rejected immediately. VIII. THE BAR MILITANT Leaders of the bar had become increasingly alarmed at the condition of legal education as it related to professional standards. The magnates of a profession that, at its top, was distinctly homogeneous shared a genuine concern about standards for admission to practice and were dismayed at the impact on the status of the profession of the recent infusion of large numbers of imperfectly schooled recent immigrants. “Character” loomed large in their discussions, and in the Canons of Ethics, published in 1908 to establish the ABA’s position as arbiter of the profession. While xenophobia and, more specifically, anti-Semitism were rarely overt in the public statements of the leaders of the bar, neither were these elements perfectly concealed. Plainly there was a question whether the character required for a grasp of American legal institutions and the ethical dimension of the practice of law might not be an Anglo-Saxon monopoly. The bar was nearly as white and male at the turn of the century as it had been before the Civil War. Several schools were established to overcome the obstacles African Americans encountered in attempting to enter the profession, the Howard University Law School being the best known and most successful, but the path to practice remained a very stony one for black Americans.Women fared hardly better. Michigan, and a few other schools in the mid and far West, could boast of their openness to women, but it was only in 1919 that a woman was hired as a full-time law teacher (at Berkeley), and it took Harvard until 1949 to admit women at all. To these familiar patterns of prejudice, nativism was now added. In his 1916 presidential address to the ABA, Elihu Root stressed the role of the lawyer as public servant, neatly subordinating the democratic notion of open opportunity to the paramount consideration of fitness for practice. Apprenticeship had given way to schooling. Therefore the standards of law schools had to be raised in order to screen out the unfit: the “half-trained practitioners [who] have had little or no opportunity to become imbued with the true spirit of the profession,” which is not “the spirit of mere controversy, of mere gain, of mere individual success.”14 Harlan F. Stone, dean at Columbia and, in 1919, president of the AALS, agreed with Root. John HenryWigmore, clearly envious of the AMA’s success, made the same 14 Elihu Root, “The Training of Lawyers,” American Law School Review 4 (1916), 188, 189. Cambridge Histories Online © Cambridge University Press, 2008 Legal Education and Legal Thought, 1790–1920 65 point with brutal directness. “The bar,” he declared, “is overcrowded with incompetent, shiftless, ill-fitting lawyers who degrade the methods of the law and cheapen the quality of service by unlimited competition.” To meet this problem, “the number of lawyers should be reduced by half,” and he concluded, stricter pre-law educational requirements would be a sensible “method of elimination.”15 Finally the explicit connection was made between higher academic standards and the exclusion of “undesirables” from the profession. Both legal education and the practice of law at their least elevated levels remained “pretty much a free thing,” as Joseph Baldwin had put it before the Civil War. Unregulated markets for education and for lawyers perpetuated the democratic openness of the Jacksonian era. That very openness, however, was an obstacle to the attainment of the dignity sought by the bar and of the stature sought by the academy.Wigmore’s candor identified competition as an additional and crucial element: entry of the unwashed into the profession was not merely damaging to its pretensions, but to its pocketbooks as well. If the lower depths of the bar had taken over criminal defense, personal injury, and divorce work – all beneath the dignity of the corporate lawyer – what would prevent them from moving into real estate, wills, trusts, and other respectable work as well? Once the bar grasped that threat, the need for regulation became clear. Increasing state licensing requirements to include two years of college prior to admission to law school could cut out many “undesirables” and socialize the remainder in ways that could repair the deficiencies of their birth and upbringing. There was no risk of creating the “caste system in its worst form” that the president of Yale feared,16 because a college education was within the reach of anyone with character, grit, and stamina, regardless of family wealth. Doubtless Root, Stone, William Howard Taft, and their peers were sincere in this belief. In 1915, however, only 3.1 percent of the college-aged population was enrolled in degree-granting institutions of any kind. Something more tangible than grit was required, and most people knew it. Root and his associates, armed with a pre-publication copy of Reed’s work, prepared their own report for presentation to the ABA in 1921. They realized that, if the bar was to be mobilized, they would have to do the mobilizing themselves. The Root Report sought at long last to commit 15 John H.Wigmore, “Should the Standard of Admission to the Bar Be Based on Two Years or More of College-Grade Education? It Should,” American Law School Review 4 (1915), 30–31. 16 Arthur T. Hadley, “Is the B.A. Degree Essential for Professional Study?” American Law School Review 1(1906), 379, 380. Cambridge Histories Online © Cambridge University Press, 2008 66 Hugh C. Macgill and R. Kent Newmyer the organized bar unequivocally to the standards long urged by the AALS, specifically to a three-year course of study and a minimum of two years of college preparation. Academics showed up in force at the 1921 meeting of the ABA to help secure the report’s adoption. At this conjunction of the bar and the academy, long-ignored political realities forced themselves on the attention of all. The leading law schools, through the AALS, had set a standard for education, but they had no means of enforcing it on non-members. They had a carrot but no stick. The ABA was equally powerless to enforce educational standards against non-conforming schools. The ABA represented a minuscule fraction of the profession (1.3 percent in 1900, 3 percent in 1910, 12 percent in 1920) and had no authority over the 623 state and local bar associations, some of which had the effective connections with state governments that the ABA lacked. The ultimate form of professional recognition is the sanction of the state. The American Medical Association, with the Flexner Report, had indeed exterminated its “rats.” But it had done so because it stood at the apex of a pyramid of state and county medical societies, whose local influence, aided by Flexner’s findings, secured higher local licensing standards. Medical schools that could not train their graduates to the requisite level lost their market and folded. The ABA, with many generals but few troops, did not have that local political influence. At its 1921 meeting, therefore, the ABA leadership decided to convene a conference the following year of representatives from all state bar associations, in order to sell the Root Report to people who might be able to put teeth into it. All the powers of the legal establishment were brought to bear on this National Conference of Bar Associations, held inWashington in 1922. The influence ofWilliam Howard Taft, the encouragement of the dean of the Johns Hopkins Medical School, and the dread of socialism were all deployed successfully on behalf of the Root Report. For the moment the academy and the profession were united. From that moment of unity much would flow, but not quickly. In 1920, no state conditioned admission to the bar on a law degree, still less a college degree beforehand. In 1920, there was no nationwide system for accreditation and licensing of law schools. The contours of practice would continue to change, affected by the Depression and the New Deal. The hard edge of Langdell’s model for law schools would become progressively softer, as increasing numbers of academics – some later to be called “realists” – looked to empirical work and the social sciences for a thicker description of law and the lawyer’s social role. The last vestige of “scientific” justification for the case method would be discredited, but the method and its accompanying structures survived. Lest they be thought too impractical, some schools would create clinical Cambridge Histories Online © Cambridge University Press, 2008 Legal Education and Legal Thought, 1790–1920 67 programs, a distan,t echo of apprenticeship first sounded in 1892. But the road that would lead to higher licensing standards for lawyers and a national system of law school accreditation was clearly marked, and the elements that would lead to legal education in its modern, apparently monolithic form were all in place. Cambridge Histories Online © Cambridge University Press, 2008 3 the legal profession: from the revolution to the civil war alfred s. konefsky The American legal profession matured and came to prominence during the century prior to the Civil War. The profession had entered the Revolutionary era in a somewhat ambiguous state, enjoying increasing social power and political leadership, but subject to withering criticism and suspicion. Its political influence was clear: twenty-five of the fifty-six signers of the Declaration of Independence were trained in law; so were thirty-one of the fifty-five members of the Constitutional Convention in Philadelphia; so were ten of the First Congress’s twenty-five senators and seventeen of its sixty-five representatives. And yet, just three weeks after the signing of the Declaration of Independence, Timothy Dwight – Calvinist, grandson of Jonathan Edwards, soon to be staunch Federalist, tutor at Yale College and, within several decades, its president – delivered a commencement address in New Haven full of foreboding, particularly for those among the graduates who would choose the legal profession. What would await them? Little but “[t]hat meanness, that infernal knavery, which multiplies needless litigations, which retards the operation of justice, which, from court to court, upon the most trifling pretences, postpones trial to glean the last emptyings of a client’s pocket, for unjust fees of everlasting attendance, which artfully twists the meaning of law to the side we espouse, which seizes unwarrantable advantages from the prepossessions, ignorance, interests and prejudices of a jury, you will shun rather than death or infamy.” Dwight prayed that, notwithstanding, “[y]our reasonings will be ever fair and open; your constructions of law candid, your endeavors to procure equitable decisions unremitted.” And he added an historical observation: The practice of law in this, and the other American States, within the last twenty years has been greatly amended; but those eminent characters to whom we are indebted for this amendment, have met with almost insurmountable obstructions to the generous design. They have been obliged to combat interest and prejudice, powerfully exerted to retard the reformation: especially that immoveable bias, a 68 Cambridge Histories Online © Cambridge University Press, 2008 The Legal Profession 69 fondness for the customs of our fathers. Much therefore remains to be done, before the system can be completed.1 In one short valedictory diagnosis Dwight captured the essence of the dilemma that would stalk the profession throughout the succeeding century. Was law a public profession or a private profession? Did lawyers owe a special obligation through their learning, education, role, and place in society to the greater good of that society, or was their primary loyalty to their clients (and by extension to themselves)? Could lawyers credibly argue the intermediate position, that by simply representing the private interests of their clients they also best served society? Dwight’s address, first published contemporaneously in pamphlet form, was later reprinted in 1788 in The American Magazine. Alongside Dwight’s lofty sentiments there also appeared a far less elevated essay, “The Art of Pushing into Business,” satirical advice from an anonymous author, Peter Pickpenny (reportedly a pseudonym for NoahWebster). This essay has been largely ignored. Nevertheless Pickpenny’s observations deserve attention, for he too picked up on the old refrain. “Are you destined for the Law?” he wrote. “Collect from Coke, Hale, Blackstone, &c. a catalogue of hard words, which you may get by heart, and whether you may understand them or not, repeat them on all occasions, and be very profuse to an ignorant client, as he will not be able to detect a misapplication of terms.” And again: “As the success (or profit, which is the same thing) of the profession, depends much on a free use of words, and a man’s sense is measured by the number of unintelligible terms he employs, never fail to rake together all the synonymous words in the English, French and Latin languages, and arrange them in Indian file, to express the most common idea.” And finally: “As to your fees – but no true lawyer needs any advice on this article.”2 Peter Pickpenny in his own way reinforced Dwight’s disquisition on the danger and temptation of the pursuit of purely private gain. Lawyers chased their own private, selfish interest. Contrary to professional lore, they would dupe their own clients while professing to represent them. At the very moment that the Republic was relying on lawyers to reconstitute the form of government, the repository of the ultimate public virtue, their capacity for public virtue was – at least for some – in doubt. Legal ideas were about the nature of the state and the theory of republican civic virtue, 1 Timothy Dwight, “A Valedictory Address: To the Young Gentlemen, who commenced Bachelors of Arts, at Yale College, July 25th, 1776,” American Magazine (Jan. 1788), 99, 101. 2 “Peter Pickpenny,” “The Art of Pushing into Business, and MakingWay in theWorld,” American Magazine (Jan. 1788), 103, 103, 105. Cambridge Histories Online © Cambridge University Press, 2008 70 Alfred S. Konefsky but lawyers lived in the marketplace constituted by private interests. That crucial intersection between public and private was where lawyers’ roles and reputations would be determined, rising or falling depending on the perception and reality of whether the twain could ever properly meet. It is tempting to invoke for the legal profession in the century after the Revolution the iconic category (or clich´e) of a “formative” or, perhaps, a “transformative” era. But it is not exactly clear that any such label is satisfactory. What we know is that the legal profession evolved in some ways and not in others. The century was clearly of critical importance in the growth of the profession. In 1750 the bar was in many respects an intensely local, perhaps even provincial or parochial profession, more like a guild than anything else. By 1860 it was poised on the verge of exercising truly national political and economic power. During the intervening years, lawyers began to exhibit the classic signs of modern professionalism. They began to cement control over admission to what they defined as their community, through education (knowledge, language, technical complexity) and social standards. They began to regulate their own behavior after admission to practice, to shape the market for their services, and generally to enhance their status in society. Lawyers encountered values, ideas, and self-images embedded in a world of developing and expanding markets, increasingly at a remove from the rhetoric of republican virtue. This new world provided both opportunity and temptation. Though they never missed a chance to lament their changing world, lawyers displayed a remarkable ability to adapt to opportunity and temptation. Their educational methods slowly altered, the numbers admitted to the profession expanded, the organization of practice gradually shifted, lawyers adapted their practices to legal change, and they occasionally forged that change themselves. The profession helped reshape professional rules of conduct to meet the demand of new marketplaces. Lawyers simultaneously complained about change and embraced it. The public did not really understand what they did, they said, so attacks on their behavior were misplaced. Yet they also tried to convince the public it was wrong, or – subtly – changed their conduct to address the criticism. The public’s skepticism always haunted the profession, particularly as lawyers began to exercise political power. In a society that moved in theory from trust that elites would exercise their judgment in the best interests of all to suspicion of the legitimacy of elites to retain or exercise power at all, lawyers believed they had no choice but to open up their profession. Still, in a culture outwardly unwilling to tolerate signs of special status, lawyers kept struggling to maintain control of their own professional identity. Cambridge Histories Online © Cambridge University Press, 2008 The Legal Profession 71 I. LAW AS A PROFESSION IN THE NEW REPUBLIC The legal profession prior to the Revolutionary era is not amenable to easy summary. Across some 150 years, lawyers in different colonies underwent different experiences at different times. Before 1700, colonies occasionally regulated various aspects of lawyers’ lives, from bar admission to fees. The bar’s internal gradations and hierarchies in England (between barristers and solicitors) did not entirely survive transplantation in America, where the paucity of lawyers seemed to undermine the necessity of creating ranks. Suspicion of attorneys, often as a carryover from religious life, existed in some places. The Massachusetts Bay Colony’s system of courts and judges flourished at times without lawyers at all – no doubt viewed by the Puritan elders (perhaps contrary to their sensibilities) as some evidence of heaven on earth. By the beginning of the eighteenth century, more lawyers were entering professional life. Lawyers followed markets for their services; they were to be found primarily in seaboard areas where the colonial populations tended to cluster. Accurate figures for the number of lawyers in colonial America have not been compiled, but estimates suggest about a half-dozen in the Pennsylvania colony around 1700 rising to at least seventy-six admitted between 1742 and 1776; about thirty to forty in Virginia in 1680, many more a hundred years later, and prominent and prosperous as well; about twenty in South Carolina (primarily Charleston) in 1761, thirty-four or so in 1771, and fifty-eight in 1776. Figures vary for NewYork, from about 175 from 1709 to 1776, to about 400 for the longer period from 1664 to 1788 (about 50 in New York City alone from 1695 to 1769). In Massachusetts, there were only fifteen trained lawyers in 1740 (one lawyer per slightly over ten thousand people); in 1765, there were fifty lawyers for a population of about 245,000; in 1775, a total of seventy-one trained lawyers. With an estimated population of one-and-a-half million people in the British colonies in 1754, the numbers of lawyers were trifling, if not insignificant. The social power and influence of colonial lawyers far exceeded their numbers. As the colonial economy expanded, trade increased, and populations grew, the number of lawyers followed suit. Some prospered (though others struggled financially). More important, as the Revolution approached, arguments both for and against independence were forged by lawyers, drawing on their education, training, and experience. Attorneys familiar with arcane land transactions and property rights or routine debt collections came to represent the public face of a political class seeking revolution and independence. Some were cemented to Revolutionary elites through marriage and kinship networks, but other than personal ties and a familiarity with Cambridge Histories Online © Cambridge University Press, 2008 72 Alfred S. Konefsky political and historical ideas related to law, it is unclear why law practice should have become associated with the Revolution: revolution might just as easily be construed as a threat to law. Aware, perhaps, of the anomaly, lawyers recast the Revolution as a purely political act that changed the form of government, but maintained and institutionalized reverence for law. The outcome was somewhat paradoxical. On one hand, it became accepted in the new United States that the sanctity of law lay at the very core of civic virtue; on the other, that the actual business of representing clients involved in legal disputes was potentially corrupting. In public roles, lawyers might be admired. As attorneys in private practice, they were condemned all too often. II. IDEOLOGY AND THE PROFESSION In the aftermath of the Revolution the legal profession appeared in disarray. Tory lawyers – by some estimates, 25 percent of all lawyers – fled. The remainder struggled to adapt to a new legal environment, untethered from the English common law and its authority. But the profession’s disarray has been exaggerated. Though there is no question that there were Tory defections (particularly in Philadelphia, Boston, and New York), their numbers were rather fewer than reported, particularly in some of the new states. As for the remainder, they quickly burnished their images in the glow of republican ideals while grasping new market opportunities. Lawyers’ Republicanism To understand the social function of the nineteenth-century American bar, it is necessary to crack the code of republicanism. Republican ideals focused on the identification and pursuit of a public good or interest that, in theory, was located in a shared belief in civic virtue. Private interest was to be subordinated, and responsibility for administering the public welfare delegated to a natural elite that would place the commonwealth’s interest above all else. Republican governors would derive their authority from general recognition of their character, merit, and demonstrated ability, not from their inherited role or hierarchical position in society. The republican ideal presented both opportunity and challenge for the legal profession. The American version of revolution was primarily driven by ideas. One might consider lawyers an unlikely repository of revolutionary fervor, but patriot practitioners certainly had preached ideas – notably separation from the crown – and were responsible, therefore, for developing a replacement. The public good was thus deposited substantially into the hands of lawyers; their responsibility was to frame forms of government Cambridge Histories Online © Cambridge University Press, 2008 The Legal Profession 73 that would guarantee the civic virtue on which the future of the Republic depended. For lawyers turned politicians/statesmen, the keys were twofold, constitutions and the common law, both envisaged as foundations for institutions that would restrain or limit the power of the state and ensure liberty. Rules were the purview of lawyers. Pay attention to the carefully crafted and drafted rules distilled from the voices of experience drawn from the ages. You will get social order and control, and avoid the threat of licentious freedom. Or so the lawyers believed. But the lawyers were reluctant to leave anything to chance. Here opportunity met its challenge. The lawyers who drafted the Republic’s constitution were afraid that the document itself, placing sovereignty in the people and deriving its authority from the consent of the governed, might in fact be more democratic than republican. Lacking faith in the capacity of the people to abide by the limits of the Constitution and behave within its restraints, the founders hence sought to create additional means to mediate between the Constitution and its core values and popular rule; to protect the people from their own excesses. Fifty years after the Revolution, lawyers were still delivering anxious jeremiads that reflected on their fears for the republican legacy with which they had been entrusted. In 1827, Lemuel Shaw, then practicing law in Boston a few years before being appointed Chief Justice of the Massachusetts Supreme Judicial Court, enjoined his colleagues of the Suffolk County bar to “[guard] with equal vigilance against the violence and encroachments of a wild and licentious democracy, by a well balanced constitution.”Well balanced meant “a constitution as at once restrains the violent and irregular action of mere popular will, and calls to the aid, and secures in the service of government, the enlightened wisdom, the pure morals, the cultivated reason, and matured experience of its ablest and best members” – people like themselves.3 It was not enough to write the documents and then get out of the way. Lawyers should be the checks and balances too. The danger was that the public would accuse lawyers of being undemocratic for intervening in the political process, for trusting neither the constitutional institutions they had created nor the citizens they had placed in positions of responsibility to undertake their own wise self-government. Ironically, however, the public documents of revolution were rule-bound. Lawyers were positioned to interpret and apply them in two distinct capacities, first as participants in the public process of creating rules of selfgovernment (laws), and second as interpreters and practitioners of law – as 3 Lemuel Shaw, An Address Delivered before the Suffolk Bar, May 1827, extracted in American Jurist and Law Magazine 7 (1832), 56, 61–62. Cambridge Histories Online © Cambridge University Press, 2008 74 Alfred S. Konefsky providers, that is, of services to fellow citizens who were, in their own interests, navigating the system the lawyers had themselves developed. Here we meet the second hallmark of the post-Revolutionary profession: its new, enhanced role in the process of dispute resolution. As the meaning of republican virtue changed and became increasingly contested, what emerged was a new kind of constitutional faith that interests and factions would ultimately balance each other out and that no one interest would ultimately dominate the polity. Given that a lawyer’s job was to represent interests, the new republicanism dovetailed neatly with a professional norm that insisted on pursuing the best interests of clients in an adversarial environment. If the Constitution and the common law created a framework within which private interest had to be recognized, who better than lawyers to mediate between these interests by getting everyone to play by the rules, by laws, and by procedures so that social order and not chaos would ensue? The problem, of course, was that lawyers could be accused of fomenting private disputes for their own personal gain and of tearing at the fiber of society, rather than preserving it. The lawyers’ response was that they were only representing the interests that the country’s constitutions recognized and that they would be shirking their republican responsibilities if they did not participate in the system of resolving disputes that helped preserve the rule of law. There was public virtue in representing the interests of others. But lawyers still wanted to be the “best men,” the dedicated, dispassionate elite that would guide the Republic. Lawyers by training and education, familiar with classical antiquity and its lessons, would form a learned profession, a natural calling, that would replace the ministry as society’s preferred leaders. Particularly well situated by preparation to participate in a government of laws, attorneys could as a profession shepherd post-Revolutionary America through daily life, or through the most trying times, just as they had through the Revolution itself. To accomplish all these tasks, lawyers had to maintain some control over who was admitted to the practice of law. From an early date they emphasized moral character as a determining factor in bar admission almost as much as acquired knowledge. Lawyers acted as gatekeepers to the profession: only those judged safe in the wake of the Revolution were deemed worthy of admission and its consequent public and social responsibilities. A halfcentury after the Revolution, Tocqueville captured part of this idea when he referred to lawyers as an “American aristocracy.” Tocqueville’s observation had many meanings, but as part of his characterization of this aristocracy he noted “[t]hat the lawyers, as a body, form the most powerful, if not the only, counterpoise to the democratic element.”4 Elites, independent and 4 1 Alexis DeTocqueville, Democracy in America (Phillips Bradley ed., 1945), 278. Cambridge Histories Online © Cambridge University Press, 2008 The Legal Profession 75 not dependent members of society, could be trusted to identify the true public interest in a society reduced to competing, potentially ungovernable, and exuberant private interests. Or at least, so the rhetoric of the bar proclaimed. The risk was that elites could be corrupted by their own private interests (always just around the corner in a market society) or that the bar could be viewed through its admission control mechanisms as a monopoly restricting opportunity or, in a related sense, could be accused of a lack of commitment to democracy and, even worse, of resisting change or the will of the people by asserting a preference for order. Republicanism, then, appeared to grant post-Revolutionary lawyers three major vocational opportunities – mediating between government and the sovereignty of the people by fostering the public good, providing the services of dispute resolution in a society of competing interests, and maintaining a disinterested bar trained to exercise enlightened leadership. All, however, would turn out to be unresolvable tensions in the life of the bar between the Revolution and the CivilWar. The difficulties they posed were played out over and over again – in legal education; in bar admission, composition, and structure; in the organization of practice; in law reform; in ethics; and elsewhere. The bar never could quite escape the ambiguity of its role in American society. Anti-Lawyer Critiques in the Republic: Defining the Public Good and the Nature of Community Under Law Not everyone thought American lawyers were living up to the republican creed. There has long been an anti-lawyer tradition in America, although it is not exactly clear whether the Revolution exacerbated or eased it. But some post-Revolutionary critics, for political and other reasons, clearly believed that lawyers were far from paragons of civic virtue, and their attacks tried systematically to stymie the attempts of attorneys to align themselves with the constituent elements of republicanism. There was a certain irony to this criticism, for it showed that lawyers’ dual capacities rendered them vulnerable as well as powerful. Through their active participation in the founding of the nation, lawyers had worked hard to institutionalize the insights of republican theory as well as to situate themselves as public representatives of it. As private lawyers, however, they could be found wanting in a wide variety of interrelated ways that served to undermine their carefully constructed public role. First, there was the perpetual, vexing problem of the complexity of law. Law in a republic ought to be accessible to all, not the special province of experts. The more technical and complex the law – with only lawyers qualified to administer, superintend, or interpret it – the more costly and the less accessible it became. The call came to simplify the words and cut Cambridge Histories Online © Cambridge University Press, 2008 76 Alfred S. Konefsky the costs. One radical program, suggested in Massachusetts by Benjamin Austin in 1786 (and republished in 1819), was simply to abolish the “order” of lawyers altogether. Similarly, the citizens of Braintree asked for laws that would “crush or at least put a proper check or restraint on that order of Gentlemen denominated Lawyers” whose conduct “appears to us to tend rather to the destruction than the preservation of this Commonwealth.”5 If the state found it impractical to control lawyers, then perhaps communities could reduce reliance on the artifice of law as practiced by lawyers. Lawyers’ “science,” some critics charged, cut law off from its natural roots in justice. In the immediate post-Revolutionary generation, they proposed ways of restoring the quasi-utopian, pristine quality of law. Massachusetts, Pennsylvania, and Maryland all considered legislative proposals to embrace arbitration procedures that would wrest control of the administration of justice from lawyers and simplify the legal process. Arbitration was also occasionally linked to court reform. As one Maryland observer noted, “The great mass of the people have found business to proceed much faster by mixing a little common sense with legal knowledge . . . . I know many private gentlemen, who possess more accurate legal erudition than the majority of attorneys, although, perhaps, not so well acquainted with trick and finesse.”6 Second, as practicing attorneys, lawyers appeared merely self-interested, rather than interested in the public good. As the citizens of Braintree hinted, self-interest threatened the fabric of the community by pitting citizens against each other. At the very least, lawyers exacerbated conflicts by representing opposed parties. Worse, as Jesse Higgins observed in 1805 in Sampson Against the Philistines, lawyers might actually foment conflict for their own purposes, rather than prevent or resolve disputes. In 1830, in Vice Unmasked, P. W. Grayson stated the problem concisely: “Gain I assert is their animating principle, as it is, in truth, more or less of all men. . . . A tremulous anxiety for the means of daily subsistence, precludes all leisure to contemplate the loveliness of justice, and properly to understand her principles.” 7 Rather than belonging to a learned profession or a higher calling, Grayson suggested, lawyers were now embedded like everyone else in the marketplace. Self interest in an increasingly atomized society was the norm, and lawyers were no exception; in fact they seemed particularly susceptible to falling victim to corruption and luxury. Third was the problem of independence in a republic that rejected forms of dependence and subordination. Lawyers were in an ambiguous position 5 Petition of the Braintree Town Meeting, Sept., 1786. 6 Baltimore American, Nov. 29, 1805 (italics in original). 7 P. W. Grayson, “Vice Unmasked, An Essay: Being A Consideration of the Influence of Law upon the Moral Essence of Man, with other reflections” (New York, 1830). Cambridge Histories Online © Cambridge University Press, 2008 The Legal Profession 77 or, perhaps, a double bind. On the one hand, lawyers represented others, clients, so the claim could be made that they were dependent on others for their business or that they were not independent producers, free of others, and self-sustaining. On the other hand, one of the aspects of republican lawyering could be construed as reserving to the attorney the right to make independent moral judgments about the virtue of the claims of clients on whom he depended for a livelihood.Would clients tolerate the substitution of the will of their attorney for their own will when clients thought that they were purchasing expertise and knowledge in the marketplace? Was the independence so prized by republican theorists fated to be eternally compromised by the social function of lawyering? And what about the perceptions of clients? In a society that valued independence, would clients resent being in the thrall of their lawyer, who possessed a grip on language and technicality? In a society that talked openly about the promise of equality, clients might chafe if they were placed under the protection of another person, dependent on his expertise. It was equality, finally, that caused lawyers their most pressing ideological problem. Republicanism required selfless, educated, virtuous elites to lead and govern. Lawyers thought they were well suited to the task. They had forged connections or networks with other elites through marriage or kinship and also through business and economic transactions, which nevertheless contributed to the image of attorneys as dependent. Moreover, obsessive and risky land speculation led some lawyers into financial distress. Yet in a society that also valued the equality, individuality, and independence of its citizens, pretensions to leadership suggested pretensions to aristocracy and hierarchy. Lawyers had not been elected in their professional lives, though the charge was that they acted as if they were. (In Jacksonian America, this insight helped fuel the move to elect judges.) In their public lives they did often serve in elected political office, shaping public policy in part through their legal insights, not associating overwhelmingly with one political party or ideology. Inevitably the bar’s claims to elite status became caught up in the maelstrom of Jacksonian democracy. In 1832, Frederick Robinson jeered at lawyers’ pretensions: “And although you have left no means unattempted to give you the appearance of Officers, you are still nothing more than followers of a trade or calling like other men, to get a living, and your trade like other employments, ought to be left open to competition.”8 Though his words were anti-monopolistic in tone, with implications for the educational 8 Frederick Robinson, “Letter to the Hon. Rufus Choate Containing a Brief Exposure of Law Craft, and Some of the Encroachments of the Bar Upon the Rights and Liberties of the People” (1832). Cambridge Histories Online © Cambridge University Press, 2008 78 Alfred S. Konefsky and admissions process, the heart of the matter was equality of opportunity. Should the profession be less of a closed fraternity with the de facto right to exclude entry, particularly if the bar was associated with economic power? The common law was not supposed to be mysterious, but available to all. The Constitution was supposed to apply to all. So the legal profession should be open to all – though whether increasing the number of lawyers was a good idea or a bad idea seemed not to concern Jacksonian theorists, any more than the question whether simplifying the law through codification would cause lawyers to behave any differently once they were trained in the mysteries of the craft. Though criticism of lawyers was widespread, it was not crippling. In some places, indeed, it seemed rather muted. Lawyers did not appear to be viewed as a particularly potent or threatening social or political force in Southern society. Their reputation, perhaps more myth than reality, placed them in a rather more genteel classification: well educated, well read, tied more closely to the planter elites and their culture, more interspersed in society, and often practicing law only when it suited them. Prosperous Southern lawyers often invested in land, plantations, and slaves, seamlessly blending with their culture rather than standing apart from it. Perhaps there was a lesson in their experience for other lawyers. Their major moral challenge was their involvement in a slave society, but most seemed to concern themselves simply with administering the system internally, coping with its contradictions and inconsistencies, rather than spending much time, at least at first, defending the system from external ideological attacks. They just acted like lawyers. So both lawyers embracing republicanism and republican critics of lawyers helped shape the contested images that would follow the profession in various forms and elaborations throughout the century.Was it declining or was it rising?Was it a learned profession or a business?Was it selfless or self-interested? Was it public spirited or private oriented? Was it political or apolitical?Was it independent or dependent? III. THE EDUCATION OF LAWYERS: THE SEARCH FOR LAW AS A SCIENCE IN A REPUBLIC Apprenticeship For most of the eighteenth and nineteenth centuries, the overwhelming majority of American lawyers were trained by other lawyers through what was known as the apprenticeship method, a method apparently conceived of as if its purpose was to train fledgling artisans in the mysteries of a craft or guild. Special knowledge and expertise were to be imparted by those solely Cambridge Histories Online © Cambridge University Press, 2008 The Legal Profession 79 in control of that knowledge to those wishing to enter a “profession” that was responsible for defining itself. Admission to the educational process was tantamount to admission to the profession, because the standards for bar admission were primarily established by the bar with occasional supervision by the courts. Those standards tended to prescribe a period of time “reading law” in an attorney’s office, followed by only the most rudimentary examination by a judge. Whether one obtained a solid legal education was mostly fortuitous. There was not much method to the process, scientific or otherwise. By necessity, therefore, almost all legal education was local. Potential students – often by dint of personal association or friendship, community, and family – enlisted in the offices of attorneys in their towns or metropolitan areas and agreed to pay a tuition of $100 or $200 (waived on occasion) to receive an “education.” Though the education was decentralized, it was remarkably uniform. From the late eighteenth through the first quarter of the nineteenth century, law students began by reading primarily what their mentors had read before them. The process often started by reading general historical and jurisprudential works focusing on the feudal origins of law, or the law of nations or natural law. From the general, the educational program moved to the particular. The great advance in legal education at this time was provided by Blackstone’s Commentaries, absorbed by generations of grateful law students. Arranged by systematic legal categories, the Commentaries provided complex yet concise insights and an overview into foundational legal principles. Blackstone also took the pressure off lawyers actually to teach, allowing them to carry on business (also using the cheap labor supplied by students), which the students might also observe. After reading, students were expected to organize their own knowledge. They did this by compiling their own commonplace books, which distilled their readings into accessible outlines. Whether learning lessons from Blackstone (or St. George Tucker’s later American version of Blackstone, or Kent’s own Commentaries) or copying the writs, declarations, or answers of the attorneys in whose offices they read, the students, often unsupervised, in theory assiduously mastered the accrued lessons of the past filtered through the remarkably similar experiences of their teachers in the present. As a result, a certain regard for tradition, continuity, and timelessness was transmitted. Over time, the educational process was enhanced as judicial decisions became more available through case reports and legal treatises on more specialized subjects were published. Even then, a student’s exposure to these materials was often at the mercy of the library of the law-office attorney. A legal education could be haphazard, and as many students complained, it was almost always drudgery. At the dedication of the Dane Law School Cambridge Histories Online © Cambridge University Press, 2008 80 Alfred S. Konefsky (Harvard) in 1832, Josiah Quincy described the current form of legal education in need of reform. “What copying of contracts! What filling of writs! What preparing of pleas! How could the mind concentrate on principles.” Books, said Quincy, “were recommended as they were asked for, without any inquiry concerning the knowledge attained from the books previously recommended and read. Regular instruction there was none; examination as to progress in acquaintance with the law – none; occasional lectures – none; oversight as to general attention and conduct – none. The student was left to find his way by the light of his own mind.” The result was boredom, inattention, ignorance. “How could the great principles of the law . . . be made to take an early root . . . by reading necessarily desultory . . . and mental exercises . . . conducted, without excitement and without encouragement, with just so much vagrant attention as a young man could persuade himself to give. . . .” 9 Reading law, therefore, was thought of as a practical education, technical learning by osmosis, but an education where acquiring the principles of the mysterious science was left to chance. There was much unhappiness with the methodology, but precious little change or thought about change. A prospective student understood that the critical step in the process was finding an office in which to read because, by rule or custom in most places, after three years or so of tedious endurance, bar admission would result. The bar decided who was worthy enough to enter the profession. The members of the bar were primarily a homogeneous group, and they generally rewarded those who were striving and seeking opportunity. To read law, one did not have to come from a wealthy family (merchants or planters), and though wealth helped a young man get accepted into a law office and pay his tuition, plenty of farmers’ or ministers’ sons found their way there. Also, having some form of undergraduate college education clearly helped – indeed, over time in some jurisdictions, the bar rules would require some formal education. But the search for organizing principles and alternative methods was only beginning. University Law Professors University law lectureships and professorships never really flourished in immediate post-Revolutionary America. Seeking to emulate Blackstone’s success as Vinerian Professor of Law at Oxford, a small number of universities created professorships or chairs. The experiment began, thanks to Thomas Jefferson, with GeorgeWythe’s 1779 appointment atWilliam and 9 Josiah Quincy, “An Address Delivered at the Dedication of the Dane Law School in Harvard University, October 23, 1832.” Cambridge Histories Online © Cambridge University Press, 2008 The Legal Profession 81 Mary as professor of “Law and Police.” (Wythe would be followed in the position by St. George Tucker.)Wythe’s professorship, mostly because of his gifts and intellect, was to be the most successful of these attempts at legal education, but other examples abound in the 1790s – from the important law lectures of James Wilson at the University of Pennsylvania and James Kent at Columbia (though after the initial ceremonial lectures, interest and students seemed to wane), to David Hoffman’s ambitious undertaking at the University of Maryland in 1814. Along the way Harvard, Virginia, and Yale began offering undergraduate law courses that over time evolved into university law schools. In addition to signifying discontent with the apprenticeship custom, all these fledgling programs had one purpose in common. The lectureships stemmed from a conviction that law was to be a learned profession and that law, if not yet a science, was certainly one of the liberal arts essential to teaching and learning about the nature, place, and role of civic virtue in a newly minted republican society. If this society was to be self-governing, it needed to educate an elite that would understand the lessons of the past and devise institutions, legal or otherwise, to prevent the mistakes of the past from recurring. So, although there was some discussion of practical legal detail, the emphasis was on organizing knowledge about the law to establish an impact on the shape of society. Society would not be safe without republican lawyers. Proprietary Law Schools Proprietary law schools arose in the United States to fill a perceived vacuum. Noone was teaching principles, and the grasp of the practical was assumed to flow seamlessly from observation and repetition. Lawyers also for the most part could superintend only a handful of students, and if no lawyer was available, a prospective student might have to travel or be inconvenienced. Monopolizing students might be frowned on, and so in some senses, it might be more efficient to form a school to attract a variety of students from a variety of places, particularly if the school could guarantee that they would be getting plenty of attention, organization, and books they might not find elsewhere. Such was Tapping Reeve’s insight and gamble when he founded the Litchfield Law School in a little corner of Connecticut in 1784. Reeve, eventually in partnership with James Gould, and finally Gould by himself, trained about one thousand lawyers (many of whom served in important positions in politics and law) before their doors closed in 1833, perhaps as a result of the competition emerging from university law schools, particularly Harvard. Cambridge Histories Online © Cambridge University Press, 2008 82 Alfred S. Konefsky Reeve and Gould offered rigor, supervision, and lectures. Over the course of fourteen months, students heard ninety-minute daily lectures organized around legal principles (not just the mindless rote of rules), recorded their lessons in notebooks, took weekly tests, and participated in forensic exercises. The measure of Litchfield’s success is that though students were drawn primarily from the New England and mid-Atlantic states, the school’s reputation was such that despite its relative isolation and Federalist proclivities about 30 percent of its enrollees were from the South, including John C. Calhoun. Litchfield’s reputation inspired other attempts by lawyers and judges to earn a living teaching law or to supplement their income by aggregating student apprentices. None of these efforts achieved the same level of broad acceptance and intellectual impact as Litchfield. But they appeared and then disappeared with various degrees of seriousness in localities in Virginia, North Carolina, New York, Massachusetts, and elsewhere. Their lack of infrastructure and financing, coupled with the slow reexamination of the ideas justifying the forms of legal education, eventually led some to believe that the place for the education of lawyers belonged in a university that could justify professional, as well as undergraduate, training. University Law Schools Joseph Story had such a vision. In 1829, beginning with the remnants of the endowed law professorship established at Harvard College more than a decade earlier, Story sought to transform the nature of legal education. A simple law professorship would no longer do; Litchfield showed that. Apprenticeship left too much to the risks of mentor inertia and student indifference. What was needed was systematic endeavor demonstrating that law was a science and belonged in a university. The question was, what kind of science. Story preferred to see law as a set of ideals, stressing universal principles of natural justice, spanning the ages and ever appropriate. Law was a moral science designed to guide human behavior. It was important, he thought, in a republic to develop a cadre of specially trained guardians, “public sentinel[s],”10 to protect, as Lemuel Shaw had put it, against the excesses of democracy. Ever mindful of the spread of Jacksonian democracy, Story wanted to guarantee that lawyers would retain strong moral character. If lawyers could not control admission to the profession, they could at least control the content of a lawyer’s education. Republican virtue must be perpetuated, sound principles enunciated clearly, governing standards declared. Training lawyers also meant sending them out into the world. 10 Joseph Story, “Discourse Pronounced Upon the Inauguration of the Author as Dane Professor of Law in Harvard University (Aug. 25, 1829).” Cambridge Histories Online © Cambridge University Press, 2008 The Legal Profession 83 Timothy Walker, who founded the Cincinnati Law School in 1835 in the image of Story and Harvard, was one. If they came to Harvard to learn, Story wanted them to populate the nation as missionaries. Story’s reach was national. Systemization of thought for him meant forming and shaping the general legal categories with which to organize a legal literature designed to tell lawyers how to believe or act. Story contributed greatly to his cause by writing innumerable legal treatises, ranging from Commentaries on the Constitution to various technical legal subjects. For Story, theory was practical. The success of Harvard Law School rose during Story’s tenure and began a generation of decline on his death in 1845. Not all who sought refuge in a university legal education shared Story’s vision. Different ideas about the nature of legal education and legal science flowed from the rationality preached by the philosophers of the Scottish Enlightenment. Tied to what became known as Protestant Baconianism, which was rooted in natural theology and eventually the natural sciences, the recommended method was one of taxonomical classification that organized knowledge and the acquisition of knowledge from the bottom up around readily recognizable first principles, instead of from the top down, as Story advocated. The Baconian system of legal thought – espoused by lawyers and law professors like David Hoffman, David Dudley Field, George Sharswood, and, most ominously for Story, his colleague at Harvard, Simon Greenleaf – was supposed to be verifiable and vaguely empirical. This method, because it was more scientific, arguably had the virtue of being able to adapt better to social change. Story did not much like change, particularly political change. The loosely knit Protestant Baconians wanted to adapt law to American experiences (an idea that Story in theory was not opposed to) and to release it from its perceived dependence on pre-Revolutionary British common law. Law needed to be explained as a science, not simply as a faith. Seeking to train lawyers based on these principles, the Baconians saw lawyers more as specialists or experts, technocrats providing a service in the marketplace, though they retained concerns about the moral responsibility of lawyers. Story apparently was afraid that unless his method was used, the republic, founded under the stewardship of lawyers, would fade away, and that lawyers would no longer be part of a learned profession and noble calling. And indeed, the face of the profession was gradually changing, just as Story feared. IV. THE GROWTH OF THE PROFESSION Over the course of the nineteenth century, lawyers, in conjunction with courts, gradually lost whatever control they had over admission standards and practices. In 1800, fourteen of the nineteen states had requirements of between four to seven years of bar preparation. By 1840, only eleven of the Cambridge Histories Online © Cambridge University Press, 2008 84 Alfred S. Konefsky thirty states insisted on prescribed periods of study. In jurisdictions like Massachusetts and New York, before the liberalization of rules governing admission, it might take a prospective lawyer up to a decade (including a fixed period of college education) to qualify for admission. By mid-century that had changed drastically. Good moral character with a shortened period of study or an examination became the standard in Massachusetts in 1836. New Hampshire in 1842 and Maine in 1843 required only evidence of good moral character, without any prescribed period of study. By 1860, just nine of the thirty-nine states insisted on any period of study. University legal education, which promised to help filter entry to the profession, was still slow to gather momentum, with about fifteen university law schools operating in 1850. These changes fed concerns about the composition of the bar that reignited disputes within the profession and the public over the proper place of lawyers in American society. The bar was forced to open up under pressure from forces loosely associated with Jacksonian democracy that produced leveling arguments coupling equality of opportunity with suspicions about elites. ,The relaxation of admission requirements has often been bemoaned in the literature of the profession as a period of great decline. But it is difficult to determine the baseline against which to measure the fall from grace, or to assess precisely how many lawyers were entering practice, or who they were. The traditional view was that the bar was a meritocracy (thereby ensuring its status as an honestly earned craft or guild or elite). In 1841, St. George Tucker observed that “the profession of the law is the most successful path, not only to affluence and comfort, but to all the distinguished and elevated stations in a free government.”11 On the other hand, lawyers from John Adams onward had expressed concerns that increasing numbers of lawyers meant more unscrupulous, untrained pettifoggers clogging the courts, stealing clients, and leading the public to believe all attorneys were mendacious predators; and that, even worse, the practice of law had become a mere business. There are very few reliable statistics on the number of lawyers in the United States between 1790 and 1850; most of the evidence is fragmentary, scattered, and anecdotal. Before 1850, there are limited data on the number of lawyers in some locations at some specific times. The federal Census of 1850, however, broke down occupations by location or state. It recorded just under 24,000 lawyers nationwide, almost half of them in only five states: Massachusetts, New York (with nearly 18 percent of the total alone), Ohio, Pennsylvania, and Virginia. And not surprisingly, by mid-century more lawyers were pushing west into Indiana, Illinois, andWisconsin. 11 [Henry St. George Tucker], Introductory Lecture Delivered by the Professor of Law in the University of Virginia . . . 8 (1841). Cambridge Histories Online © Cambridge University Press, 2008 The Legal Profession 85 As to the number of lawyers as a proportion of the general population, “[b]etween 1850 and 1870, the ratio was fairly steady: 1.03 lawyers to every 1,000 population at the beginning and 1.07 at the end.”12 If one compares this data with numbers on the eve of the Revolution, it is clear that by 1850 many more men were entering the legal profession, and the relative number of lawyers in proportion to the general population had increased significantly. Indeed, lawyers in some places complained that the profession had become overcrowded and was degenerating into a mere business, while anti-lawyer critiques decried the “swarms” of lawyers. But in places like New York, the increased number of lawyers might have been a consequence of the accelerating pace of market expansion and trade, as well as the growing complexity of legal practice. And in any event, the impact of lawyers on public policy and political activity may have been disproportionate to their absolute or relative numbers. So, was the ubiquitous lament about the overcrowding and decline of the legal profession in part a complaint about who the new lawyers were? Only a few brief demographic snapshots analyze data about lawyers’ social class and status over the nineteenth century. The two most extensive studies are of Massachusetts and Philadelphia. For Massachusetts, Gerald Gawalt found that, of 2,618 trained lawyers practicing in Massachusetts and Maine between 1760 and 1840, 71 percent held college degrees. Admittedly, Massachusetts was hardly the frontier, but in a period when a college education was the exception and not the rule, this data seem scant evidence of the decline of the profession, at least in that state. Gawalt also found that over time most college-educated lawyers in Massachusetts and Maine came from professional families and often were the sons of judges and lawyers. It seems fairly clear that, at least for this period, Massachusetts lawyers retained the gloss of an educated elite, not necessarily upper class, but solidly grounded in the community. A narrower sample of lower federal court judges from 1829 to 1861 also indicates the judges were generally from the educated middle class.Western or frontier lawyers, drawn from a different cohort, seem to have been from more humble origins. In Philadelphia, the story was a little different. From 1800 to 1805, 68 percent of Philadelphia lawyers were college graduates, and 72 percent came from elite families. By 1860, the number of college graduates in the profession had fallen to 48 percent. The pool of prospective lawyers, meanwhile, had expanded. Upper-class representation declined from 72 percent to 44 percent. Where middle-class families were only 16 percent of the 12 Terence C. Halliday, “Six Score Years and Ten: Demographic Transitions in the American Legal Profession, 1850–1960,” Law & Society Review 20 (1986), 53, 57. Incidentally, the ratio “rose steeply to 1.5 in 1900, but then contracted to 1.16 in 1920.” Id. Cambridge Histories Online © Cambridge University Press, 2008 86 Alfred S. Konefsky sample in 1800–1805, now they were nearly half. Twenty-seven percent came from the artisanal and lower middle class. The lower-class group remained steady over time at 12 percent. The appearance of a more heterogeneous profession where once there had been a more homogeneous legal community might explain some of the bar’s rhetorical crankiness or anxiety about its status. However, agitation about lost status and lost community did not necessarily translate into reduced authority. The middle class was not preaching revolution, just access. This also meant that, as more individuals were engaged in an expanding economy, new markets for legal services would be created. One of the paths to enhanced market participation was to represent those touched by the same invisible hand. Most young lawyers sought entry to the profession to build their own lives, not threaten others. In any case, there were clear limits to the bar’s diversity. At this time, for obvious reasons, the profession remained overwhelmingly white, and male and Protestant. A handful of African Americans became lawyers before the Civil War. Only about six were admitted, beginning with Macon Bolling Allen in Maine in 1844. Allen left Maine within a year, apparently clientless, and was admitted to the bar in Massachusetts in 1845. Robert Morris, Sr., followed suit in Massachusetts in 1847, where he established a thriving practice, best remembered for his failed quest to desegregate the Boston public schools in 1848–1849 in Roberts v. City of Boston. Women fared worse. There is some evidence that women on rare occasions appeared in court on their own or others’ behalf, but no women were admitted to the practice of law before the Civil War. Belle Mansfield was admitted to practice in Iowa in 1869, and shortly thereafter, Myra Bradwell, fresh from having founded the Chicago Legal News, passed her bar exam, only to be denied admission, thereby starting the path to the constitutional decision barring her entry to the profession. At this stage, the weight of gender stereotypes was apparently too much to overcome. By 1860, the bar was growing, with only a few cracks in its facade of social class. It was now a symbol of aspiration, and if indeed it was a higher calling, why would the bar complain about all those aspiring to enter? Anxious about losing status and professional control, the bar continued to fret. For all its concerns its hegemony over law never really seem threatened. However, immigrants, non-Protestants, racial minorities, women, and poorly educated supplicants were looming just over the horizon. V. THE ORGANIZATION OF PRACTICE Wherever a lawyer during this period might have been located – New England, Mid-Atlantic, Midwest, South, West, or the so-called frontier, Southwest, or eventually the Far West, urban or rural – the chances were Cambridge Histories Online © Cambridge University Press, 2008 The Legal Profession 87 overwhelming that he was a solo practitioner. And it was just as likely that he was a generalist, prepared to take any business that walked in the door. “In this country,” one lawyer commented in 1819, “there is little or no division of labour in the profession. All are attornies, conveyancers, proctors, barristers and counselers. . . . It is this habit of practical labour, this general knowledge of business, which connects the professional man in this country with all classes of the community, and gives him an influence, which pervades all.”13 The realities of practice thus also determined the place of lawyers in American society. A lawyer had to have some facility in pleading and litigation (though just exactly how much litigation actually went to trial is unclear), and the dimensions of a lawyer’s expertise might be tested by where he practiced. For example, if a lawyer practiced on the frontier or the old Northwest, or parts of the South, or interior New England from 1790 to about 1820, unless he was anchored in a small metropolitan area, he probably rode circuit; that is, took his business on the road following the terms of the courts as they circulated throughout the jurisdiction. Thus, the typical lawyer faced a number of challenges. First, he probably did not know most of his clients until he met them. Second, he had to be a quick study, or at least capable of reducing the great mass of business into a routine processing mode (often just filing actions to preserve claims, particularly debt collections, or appearing to defend them). Third, he had to be nimble on his feet. He had to go to trial with little or no preparation, so some forensic ability might help, including an aptitude for shaping or developing a narrative – telling a good story. Rhetoric might or might not get in the way, although there is some evidence that the trial calendar was treated in some locations (rural as well as urban) as local theater or entertainment. Fourth, a lawyer’s reputation was treated as a kind of roving commission: the success of his business depended on his perceived performance. Last, he had to be willing to travel with and develop a tolerance for a group of fellow lawyers and judges. In the absence of bar associations in most places, lawyers boarded and bonded with one another in all kinds of settings. There is a fair amount of bar and other literature heralding the brotherhood of lawyers – looking out for each other’s business, for example. There are also accounts of boisterous and occasional violent confrontations between lawyers in the South and West, which sometimes are cited as evidence of their community. As courts became more centralized, one shift in the method of practice over the century was the reduction of circuit riding, sometimes over the complaints of those who found it difficult geographically to gain access to courts. Though transportation networks were expanding, judges and 13Warren Dutton, “An Address Delivered to the Members of the Bar of Suffolk . . . 1819,” 6–7. Cambridge Histories Online © Cambridge University Press, 2008 88 Alfred S. Konefsky lawyers tended to withdraw from traveling, or at least circuit riding was no longer a central identifying feature for some of the bar. Over time in some places in Tennessee, Ohio, and Michigan, lawyers went to clients or physically searched for clients less often; rather the clients came to the lawyers. The market for services had changed. Attorneys had another reason for choosing solo practice: there was not enough business to support more extensive office practices. Most lawyers made a decent enough living. Some struggled. A few became very rich. By 1830 Lemuel Shaw was earning between $15,000 and $20,000 annually, a great deal of money in those days. Alexander Hamilton, Daniel Webster, and others also made large sums of money. In New York and in some of the eastern seaboard cities from North to South, lawyers in practices tied to economic expansion and organization prospered by investing or by serving as corporate officers, bank directors, or trustees. Nonetheless, in 1856 John Livingston reported in his national survey of the bar that a lawyer’s income averaged about $1,500 per year, less than most appellate judges’ salaries at the time. This general “sufficiency” does not mean the bar was not stratified. It was, not formally as in England, but by income. Age was one factor. In some places attorneys when first admitted were limited to practice only in lower courts for a probationary period. Young lawyers tended to move west to seek opportunity and avoid competition. The income hierarchy was differentiated further over time in some locales, like cities, based on what courts a lawyer practiced in – courts of criminal jurisdiction, for instance, as opposed to appellate practice. The primary marker of stratification, however, was the lawyer’s clients. For a profession that valued its independence, it was remarkable to see a de facto classification of lawyers emerge based on whom they represented. Closely examined, a simple debt transaction reveals the initial layers of the profession. On one side would stand the debtor, typically starved for cash. His lawyer would spend his time ascertaining the circumstances of the transaction, gathering the documents (probably limited and primitive), responding to pleadings (usually mechanical and rote), but often seeking to postpone the payment or judgment for as long as possible so his vulnerable client could remain afloat. The lawyer had few economic resources or legal strategies available, and he often negotiated or corresponded with the creditor’s attorney from a position of weakness. His fee was likely to be small and difficult to collect. He scrambled for business and was fortunate if he could bargain with his opponents to renegotiate the terms of the transaction or arrange a settlement. The creditor’s lawyer, by contrast, operated in a much more stable environment. Legally protected in most circumstances, the creditor asserted his Cambridge Histories Online © Cambridge University Press, 2008 The Legal Profession 89 rights in the transaction from a position of strength. His lawyer behaved accordingly. He also evaluated the factual setting, counseled his client, negotiated on his behalf, and prepared the pleadings. But the underlying economic circumstances of the creditor were likely, though not always, to be better than the debtor’s. Securing a debt for a relatively wealthy client was very different from scrambling to avoid paying a debt for a client with more limited resources. The creditor’s lawyer, further, might have been specifically retained with fees to pursue the debt – mercantile firms or banks paid handsomely for lawyers’ services, particularly in urban settings, and particularly as, over time, the transactions both in the original counseling and drafting phases became more complex and sophisticated. Thus, although lawyers might share a professional identity of sorts, on any given day, they might be doing very different things with very different consequences growing out of the same subject matter. The different forms of legal practice became segmented over time through repetition. They also became stratified as what the lawyer did increasingly reflected the wealth of the clients he represented. Over the course of the century, the wealth of the client was more likely to be corporate, not individual. Here lay major engines of stratification – retention and repetition. An individual landowner might need an attorney occasionally for buying and selling land or arranging leases or easements. But what if a newly chartered railroad sought to take or cross his land? Suddenly the quiet enjoyment of his property became a major problem. Meanwhile his attorney – attuned to bread-and-butter miscellaneous disputes or minor property matters – might find himself confronting a new phenomenon, the retained railroad lawyer, professionally sophisticated and with substantial client resources at his disposal. The railroad attorney might have helped draft the legislative charter creating the enterprise (and lobbied for it politically with fellow lawyers), arranged and secured financing for the project (and drafted those documents as well), fended off the competing claims of other competitive roads or corporations (with their own retained attorneys), overseen the eminent domain or taking proceedings before nascent administrative bodies or the courts, negotiated complex deals, and generally dealt with a host of railroad-related matters. Hired railroad attorneys were very polished repeat players in the expansion of economic development projects. Landowners and their generalist lawyers were not. The enterprise or corporate lawyers tended to separate themselves from other strata of the profession through their specialization and economic success and, therefore, exercised more social and political power. The emergence of a segmented and stratified profession was reinforced by social kinship and family networks. Bar elites cemented their social and political status and power by alliances with entrepreneurs: lawyers’ families Cambridge Histories Online © Cambridge University Press, 2008 90 Alfred S. Konefsky were often connected by marriage to fledgling industrial capitalists in New England, or to the owners of large manorial land holdings or mercantile interests in New York, or to banking or insurance interests in Philadelphia, or to planter elites in Virginia and South Carolina. Lawyers representing other constituencies tended to identify with them. Though its republican rhetoric asserted that the bar should have been monolithic, in practice it was not, giving rise to concerns about the profession’s integrity. Identification of lawyers with or by their clients had a ripple effect on contested views about ethical norms. If a lawyer had close social ties with his clients, zealous advocacy on their behalf could be assumed – it would seem to follow naturally from the perception that the moral universe or behavior of client and lawyer tracked each other. Hence there would be little need to question the acts of representation undertaken, thereby enhancing the lawyer’s professional discretion. A lawyer who did not have the luxury of representing clients with whom he was economically or socially associated could not risk developing a reputation for less than complete devotion lest he endanger his future prospects. A lawyer who had to devote himself to a client to maintain that relationship or forge new relationships, that is, lacked discretion. Yet ultimately, whether a lawyer was comfortable representing interests he found congenial or was economically dependent on his client and therefore zealous, the organization of practice tended to inhibit the ethical standards of disinterested republicanism, or to inhibit the lawyer’s appreciation of the tension in the marketplace that reduced their relevance. During the century before the CivilWar, social changes slowly occurred in the nature of practice. Partnerships emerged, though they were still the exception and not the rule, and may not have been very stable. Typically a partnership was composed of two attorneys who, because of the increased press of business, divided their responsibilities between litigation and office practices; the so-called office lawyers dealt with a growing diversification of practice, no longer just pleading, trial preparation, and jury work. Drafting instruments, planning transactions, and advising clients as to what was possible and what was not became the province of the office lawyer, who rarely entered a courtroom. Sometimes partnerships were formed between older and younger attorneys – the younger at first managing the office and preparing documents – somewhat akin to the apprenticeship relationship. The move toward partnerships tended to signal a recognition of the increased pace and complexity of practice. Combining forces paved the way for another shift in practice, a subtle move toward specialization. There had always been pockets of specialization. The Supreme Court bar, composed of lawyers like Pinkney, Webster, and Wirt, was known for its oratorical skills in appellate advocacy. Trial Cambridge Histories Online © Cambridge University Press, 2008 The Legal Profession 91 lawyers like Rufus Choate or Lincoln were renowned for their forensic and rhetorical skills. But now specialties along the lines of specific areas of law began to emerge; they were technical, complex, and narrow. For example, bankruptcy law experts, still mostly solo, developed around the short-lived federal Bankruptcy Acts. Lawyers who might once have been generalists now devoted more of their time to one subject, where their talents and expertise could be honed more and more by repetition and familiarity. There were maritime lawyers, insurance lawyers, railroad lawyers, patent lawyers, finance lawyers, bank lawyers, factor and agent lawyers, and creditor lawyers – all primarily devoted to stoking the engine of economic development, and many focused on moving money as well as goods and services. In a number of ways, specialization fed the segmentation of the profession. As we have seen, the economic status of the client helped define the social and professional status of the attorney. Increasingly, lawyers tended to cluster in cities. Eventually, particularly after the CivilWar, the cities would become the home to larger law offices and law firms as demand for complex work across a variety of legal services exceeded the capacities of individual attorneys. Law practice was slowly forced to adapt to meet the multiple needs of clients in an interdependent world. Representing complex organizations in the various facets of their own corporate lives or in legal relationships with other complex organizations required more than one or two lawyers. The division of labor between litigation and office work was no longer sufficient: office work in particular could involve a whole new wave of planning and drafting demands, and integration with the world of commerce and enterprise. Lawyers were skilled, if not always at shaping markets, at least in adapting to them. The organization and structure of practice moved fitfully toward life in the post–CivilWar economy: more urban, less rural; more industrial, less agricultural; more expansive and interconnected, less local and isolated. Solo practitioners remained the backbone of the profession in numerous small communities, but the idea of the law firm was slowly taking shape. VI. LAW AND LAWYERS On one matter, most lawyers of any intellectual stripe between the Revolution and the Civil War could agree: law either was a science or should be a science. But exactly what the meaning of science was or what consequences flowed from law being a science was deeply contested. The critical question was the relationship of law as a science to civic virtue. The republican lawyers and their ideological descendants, the Federalist-Whig elites, strove mightily to capture the high road of the rhetoric of law as a science and, therefore, to seize and define the terms of the debate. Cambridge Histories Online © Cambridge University Press, 2008 92 Alfred S. Konefsky The Science of Law and the Literature of Law For most republican lawyers, establishing legal science became a crucial organizing idea in the republican program, whether in legal education or political engagement. It was, they thought, the special responsibility and province of educated lawyers to ensure that private and public decisions were grounded in or sanctioned by the solid principles of law verifiable as a science. Precisely what this meant was a little unclear, but certain basic principles seemed generally accepted. First, law was a product of reason rather than passion, and therefore restrained the base or corrupt instincts of man. Second, law could be derived from principles that could be deduced in a systematic and orderly fashion from the mother lode of the common law, which was in turn derived from reported appellate cases. Third, law meant stability, order, certainty, and predictability as, over time, it developed culturally sanctioned norms or rules that tended to resist change, but were capable of slowly adapting to measured progress that would serve the greater public good. Others might have a different definition of the science of law. Jacksonians found the science of law to be a political science, grounded in positive law, the will of the people. Protestant Baconians found the science of law in natural theology filtered through the Scottish Enlightenment, preferring the methods of inductive natural science to deduction. But the republican vision of law dominated the debate, and every competing theory began by positing an alternative to it. Once generally embraced, how did the idea of legal science contribute to the formation of the literature of the law? The impact can be measured in three developments in the literature: law reports, legal treatises and commentaries, and legal periodicals. The proliferation of American law reports was both a response to the demand from the profession for certifiably “decided” law and a result of its need for a reflective distillation of the rapidly increasing numbers of judicial decisions. The first reporters in the late eighteenth century were entrepreneurial actors meeting a perceived market; by the early nineteenth century the states and the federal government had begun to commission official law reports. Judicial reports satisfied the profession’s demand for indigenous American law to reduce reliance on English precedents and to cope with the vast expansion in market activity that was a hallmark of the Early Republic. In 1807, at the outset of the growth of law reports, a young lawyer named Daniel Webster, reviewing a volume of reports for a literary journal, made explicit the connection between case reporting and legal science: Adjudged cases, well reported, are so many land-marks, to guide erratick opinion. In America the popular sentiment has, at times, been hostile to the practice of deciding cases on precedent, because the people, and lawyers too, have misunderstood their Cambridge Histories Online © Cambridge University Press, 2008 The Legal Profession 93 use. Precedents are not statutes. They settle cases, which statutes do not reach. By reference to books, an inquirer collects the opinions and arguments of many great and learned men, on any particular topick. By the aid of these, he discovers principles and relations, inferences and consequences, which no man could instantaneously perceive. He has, at once, a full view of his subject, and arrives without difficulty, to the same conclusion, to which, probably, his own mind would in time have conducted him by a slow and painful process of ratiocination.14 In the canon of republican legal science, the identification of precedents from which followed order and stability was necessary to forestall incursions of “popular sentiment.” The second development in the literature of law was the appearance of commentaries and treatises, some as American versions of English editions, but increasingly over time, purely American volumes on various specific legal subjects. Blackstone had provided the model for the organization of legal knowledge for Americans, and he was emulated first in St. George Tucker’s version of Blackstone in 1803, which sought to provide an American legal and political adaptation, and then by James Kent, whose four-volume Commentaries were published between 1826 and 1830. But the general classification of principles for study and application, though invaluable, needed supplementation as law practice became more varied and, in some manner, more technical. Lawyers wrote treatises covering in depth a range of subjects: water rights, corporations, insurance, evidence, contracts, damages, and international law. Most prominent among the treatise writers was Joseph Story, who wrote on the Constitution, equity, bailments, agency, partnership, promissory notes, bills of exchange, and conflict of laws. Each work in its own way conveyed Story’s view of legal science, mining the common law and wider sources – if necessary the civil law or the law of nations – to derive legal principles from the historical foundations of law. In a sense, Story preempted the field of treatise writing as well as providing an American model. And he presided over a rejuvenation of legal writing, though it might be a conceit to call it a “literature.” Between 1760 and 1840, almost 500 legal monographs (approximately 800 editions) were published in the United States, only about 90 of them (125 editions) in the period up to 1790. (The figure does not include case reports, codes, statutes, digests, legal periodicals, or most miscellaneous pamphlets like bar orations or discourses.) Lawyers were reaching out for guidance, and Story entered the field to ensure that the guidance conformed to his view of legal science. 14 DanielWebster [Book Review of 1William Johnson, NewYork Supreme Court Reports], The Monthly Anthology 4 (1807), 206. Cambridge Histories Online © Cambridge University Press, 2008 94 Alfred S. Konefsky The third forum for writing about law was the legal periodical. Between 1790 and 1830 a total of twelve legal periodicals were published. In 1810, only one existed; in 1820 again only one; in 1830, five. In other words, early in the century very few legal periodicals generated enough interest or subscribers to survive. Between 1840 and 1870, in contrast, thirty-seven were formed, and more of them survived at least for the short term. They were an eclectic mix; most were utilitarian, printing early notices of decided cases, or book reviews of new treatises, or surveys of new statutes. But some, like American Jurist and Law Magazine, published in Boston between 1829 and 1843, the Monthly Law Reporter also published in Boston from 1838 to 1866, and the Western Law Journal published in Cincinnati from 1843 to 1853, had higher aspirations, publishing essays on subjects internal to the bar and on topics of general public concern to lawyers as well. The founding editor of the Monthly Law Reporter, Peleg Chandler, divulged to Joseph Story, his mentor at Harvard Law School, his reasons for beginning the journal: “A great deal is said in particular cases, even in arguments to the court, about what the law ought to be or might well be, but precious little of what it is.” What was needed, Chandler insisted, was “to hold up before the profession and the public the decisions fresh from the court – to place before them the law as it comes from the dispensers of it – from those who are too far removed from the public to be easily affected by the changing fashions of the day. . . . ” By so doing, his magazine would illustrate why “[n]oisy radicals are not men who have read intimately the reports and become acquainted with the intricate machinery, of which, if a part be disarranged, the whole may suffer. . . . ”15 Appealing directly to Story’s understanding of legal science, Chandler sounded very much like DanielWebster a generation before, applauding the arrival of law reports. He assumed that finding and stating “what it is” was a scientific undertaking. As Chandler more than hinted, engaging in this pursuit of legal science had political consequences. Lawyers in a republic had a responsibility to be engaged in civic discourse, reasoning and arguing for the most effective legal rules in the public interest. Lawyers from the time of the Constitutional Convention in Philadelphia onward had gravitated toward the public, political arena, whether in legislatures, or state constitutional conventions, or executive offices. In Massachusetts from 1760 to 1810, just over 44 percent of all lawyers were elected to some public office; from 1810 to 1840, about a third of all Massachusetts lawyers were elected to public positions. (There is some evidence that lawyers served extensively in public positions throughout the nation.) Essays that Chandler published hence investigated the social, economic, and political implications of the scientific principles 15 PelegW. Chandler to Joseph Story, December 1, 1838. Cambridge Histories Online © Cambridge University Press, 2008 The Legal Profession 95 of law they presented. To fulfill its mandate for civic virtue, a governing elite needed information and a forum to work out its arguments. The legal science expounded in and by law reports, treatises, and periodicals also served an instrumental purpose, reinforcing the notion that only lawyers, scientifically and technically trained, could be trusted with law. Ironically, the anti-lawyer complaints that law was inaccessible and too complex might be true after all: only lawyers had sufficient command of arcane procedures and pleading, complex doctrine, and strange language. Through its literature, the bar justified its role to itself and the public by separating itself off – a special professional group, different from others in society. Law was the domain of lawyers. Their expertise, they argued, qualified them to administer the legal system and to resist the inroads of any non-scientific thought as they defined it. The Common Lawyer and Codification No technical issue of law reform so agitated the elite and academic lawyers in the nineteenth century as codification. At its core, the project of codification undermined the legal profession. By questioning the legitimacy of the common law and offering an alternative vision of law in a democratic society, codifiers challenged the central role lawyers played as guardians of the repository of law. As a result, there was much heated rhetoric on the subject. Whether the threat of codification was ever palpable is an interesting question, but at the very least codifying ideas was a political challenge to lawyers’ control over the content of law. The codifying impulse has a long history in America, beginning at least with the Puritans. Arguably the state and federal constitutions are examples of the art. So it is a little difficult to understand why the common lawyers were so upset at the appearance of arguments on the subject. Codification was never an organized movement. In fact, there were at least three distinct strands to the call for legal codes: a middle-class complaint about the common law, a social activist complaint, and a purely lawyerly complaint (with overtones of social activism). All criticisms focused on the perceived failings of the common law to provide responsive legal solutions to current social problems. Codifiers argued that the common law was bogged down by inaccessible technicalities derived from outdated British, not American, experiences and that lawyers manipulated the common law for their own self-interest, not the public’s interest. In other words, law and lawyers were failing to deliver on promised republican virtue, and therefore, the making and administration of law should be returned to its true source in a democracy, the people, by having elected representatives in the legislature (who, ironically, might be lawyers) draft laws truly reflecting the will of the Cambridge Histories Online © Cambridge University Press, 2008 96 Alfred S. Konefsky people. In the face of these charges, the common lawyers sought in effect to co-opt the arguments by transforming the debate into an internal legal discussion, rather than an ideological conflict. The middle-class strand of codification drew its inspiration from prevailing anti-lawyer sentiment. The concerns expressed in the 1780s in Benjamin Austin’s pamphlet, seeking abolition of the “order” of lawyers, slowly led to reconsideration of the nature of the law being practiced. In 1805, Jesse Higgins questioned the adequacy of the common law in a pamphlet entitled “Sampson against the Philistines; or, the Reformation of Lawsuits; and Justice Made Cheap, Speedy and Brought Home to Everyman’s Door: Agreeably to the Principles of the Ancient Trial by Jury, before the Same Was Innovated by Judges and Lawyers.” Higgins did not call for codification. Rather he thought lawyers made lawsuits expensive and time consuming and so suggested a system of arbitration to restore “cheap, speedy” justice, devoid of complexity. All that lawyers did, according to Higgins, was capitalize on people’s distress and pull communities apart, rather than bind them together as republicanism required: “[T]he whole body of common law, the whole body of pleading, rules of evidence, &c. have no legislative vote to establish or even to define them. They depend wholly and entirely for their authority on notes taken by lawyers and clerks, about this very time, and hence the judges become the legislators.” In addition, “all those laws which relate to property, . . . which are just and ought to be valid, are in every age and every country, the simplest rules, and fittest to the plainest capacities; . . . that any and every ignorant man . . . can decide any question agreeable to law, although he never heard a law read, or read one during his life.”16 Higgins’ middle-class lament was a central component of codification: Legislate, simplify the rules, state them clearly, make life easier, and reduce our dependence, financial and otherwise, on lawyers. Restore law to its roots in justice and reduce the power of lawyers. The ideological origin of the common law was a distinct issue that attracted the attention of codifiers who had pursued an agenda of social activism, sometimes perceived as radical change. The social activists drew their criticisms from their causes: labor, antislavery, and religious tolerance. William Sampson, an Irish emigr´e attorney in New York, provides an example. His defense of New York City journeymen cordwainers in 1809 anticipated his more thorough-going call for codification in 1823 in his “Anniversary Discourse . . . on the Nature of the Common Law.” Sampson attacked the nature of the cordwainers’ indictment for conspiracy at common law for seeking to exercise their power as a nascent labor union. 16 [Jesse Higgins], Sampson Against the Philistines . . . 16, 27 (1805). Cambridge Histories Online © Cambridge University Press, 2008 The Legal Profession 97 Sampson’s criticism of the common law was organized into four separate categories. He asserted that in America, at least formally under law, all men are or should be equal: “[T]he constitution of this state is founded on the equal rights of men, and whatever is an attack upon those rights, is contrary to the constitution. Whether it is or is not an attack upon the rights of man, is, therefore, more fitting to be inquired into, than whether or not it is conformable to the usages of Picts, Romans, Britons, Danes, Jutes, Angles, Saxons, Normans, or other barbarians, who lived in the night of human intelligence.” Second, in England statutes were vehicles of inequality. “[T]he English code and constitution are built upon the inequality of condition in the inhabitants. . . . There are many laws in England which can only be executed upon those not favoured by fortune with certain privileges; some operating entirely against the poor.”17 Third, in America, statutes created equality; the common law was the source of inequality. Indictments at common law in the United States, therefore, were suspect because they were at variance with America’s enlightened constitutional tradition. Finally, Sampson suggested that statutes were to be trusted because they had involved a process of filtration through the will of the people who were ever vigilant about equality. Codification, he added in 1823, would guarantee that “[o]ur jurisprudence then will be no longer intricate and thorny.”18 The attacks that defenders of the common law found most difficult to deflect came from lawyers, many of them Jacksonian Democrats, who challenged the basic underlying political legitimacy of an uncodified law in a democracy. Robert Rantoul, tied to social reform movements and risking ostracism in Brahmin Boston, threw down the gauntlet in 1836. Judgemade common law, according to Rantoul, was simply judicial legislation. Judges had arbitrary power because the common law provided no certain and predictable rules. Law should be “a positive and unbending text,” not maneuvered by lawyers in front of judges. “Why,” asked Rantoul, “is an expost facto law, passed by the legislature, unjust, unconstitutional, and void, while judge-made law, which, from its nature, must always be expost facto, is not only to be obeyed, but applauded? Is it because judge-made law is essentially aristocratical?” This was a charge that republican lawyers like Joseph Story strangely might have found apt or congenial. An aristocracy, Rantoul suggested, that is indebted to the feudal barbarity of the dark ages for its power is inimical to the social needs and purpose of a modern nation. 17 [Argument of William Sampson], “Trial of the Journeymen Cordwainers of the City of New York.” 18William Sampson, “An Anniversary Discourse, Delivered Before the Historical Society of New York, on Saturday, December 6, 1823: Showing the Origin, Progress, Antiquities, Curiosities, and the Nature of the Common Law.” Cambridge Histories Online © Cambridge University Press, 2008 98 Alfred S. Konefsky “Judge-made law is special legislation,” and, according to Rantoul, “[a]ll American law must be statute law.”19 If Rantoul supplied the ideological framework, it fell to David Dudley Field to shore up the theory and carry out the project and practice of codification. And he did so with relentless zeal, though only modest success, proposing code after code for New York and elsewhere. Field sought to demonstrate that codes rather than the common law were workable, expedient, and responsive, not inflexible and inexpedient. Codes devoted to specific legal subjects like civil procedure or criminal law would be comprehensive and transparent. Everyone would know what the law was; nothing would be mysterious. The advantage would be “the whole law brought together, so that it can be seen at one view; the text spread before the eyes of all our citizens; old abuses removed, excrescences cut away, new life infused.” The “CODE AMERICA,” as he put it, would contain “the wisest rules of past ages, and the most matured reflections of our own, which, instinct with our free spirit of our institutions, should become the guide and example for all nations.” And for lawyers, “the great task is committed of reforming and establishing the law.”20 Most of the academic lawyers who actually noticed the push against the common law were horrified and set about their own “task” of capturing the move for codification and reshaping it to their own ends. They were led by Joseph Story, Associate Justice of the U.S. Supreme Court and Dane Professor of Law at Harvard. In 1836, Story chaired a commission appointed by Governor Edward Everett of Massachusetts to determine the “practicality of reducing to a written and systematic Code the common law of Massachusetts, or any part thereof.” Story set out to fend off codification by in effect rehabilitating the common law. In the process, he ended up either making concessions or engaging in contradictions, depending on how one assesses his arguments. Codes, Story argued, were cumbersome and inflexible. They could not by their very nature adjust quickly enough through the legislative process to changed social circumstances. “[I]t is not possible to establish in any written Code all the positive laws and applications of laws, which are necessary and proper to regulate the concerns and business of any civilized nation, much less of a free nation, possessing an extensive commerce. . . . ”21 But a limited form of codification could take place, one familiar and useful to lawyers and judges, a kind of digesting system 19 Robert Rantoul, “Oration at Scituate, Delivered on the Fourth of July, 1836.” 20 David Dudley Field, “Reform in the Legal Profession and the Laws, Address to the Graduating Class of the Albany Law School, March 23, 1855.” 21 “Report of the Commissioners appointed to consider and report upon the practicality and expediency of reducing to a written and systematic code the Common Law of Massachusetts . . . ,” reprinted in American Jurist and Law Magazine 17 (1837), 17, 30, 27. Cambridge Histories Online © Cambridge University Press, 2008 The Legal Profession 99 consistent with Story’s view of legal science, ordering categories and principles culled from cases and judicial decisions; in other words, the common law. Indeed, Story was already engaged in a version of this process through his prodigious treatise-writing efforts. To reject codification, however, Story had to concede implicitly that Rantoul and others had a point. Once defended by him as stable, certain, predictable, universal, and the voice of experience, the common law was now described as flexible, changing, unfixed, and capable of growth. Ironically, uncertainty was now the common law’s strength compared with positive law, which could not adjust as quickly to social change: “[T]he common law of Massachusetts is not capable of being reduced to a written and systematic Code; and . . . any attempt at so comprehensive an enterprise would be either positively mischievous, or inefficacious, or futile. . . . ” Instead, he argued, “the common law should be left to its prospective operations in future (as it has been in the past) to be improved, and expanded, and modified, to meet the exigencies of society” by the application of its principles to new cases only rarely supplemented by legislation.22 Here then was the spectacle of common lawyers like Story defending the common law as flexible and capable of growth. Its flexibility was its strength. Once having brandished the common law as an unassailable citadel of stability and certainty, fixed in its derivation and application, the common lawyers now transformed it into a progressive science. To ward off the view that laws should exist in positive codes, Story was willing to risk admitting that judges make law. He did so because in his mind the greater danger to continuity, order, and stability was the old fear of democratic excess – the fear that the legislature, expressing the will of the people and taking the promise of equality too seriously, might readily undermine the carefully honed certainty and predictability of property rights. What Story was really afraid of was not that positive codes might fail to adjust quickly enough to changing circumstances, but that legislatures drafting codes would actually seek to change circumstances. Story was not opposed to the common law adapting to change grounded in recognized principles; he was opposed to changes in law he saw as derived from purely political motives. The codifiers responded that if judges actually made law – if law was merely a matter of will – then let it be roped in, rendered consistent, and made by the legislature. For all of the debate among lawyers in elite circles, codification never obtained sufficient traction among lawyers who were focused on the more mundane issues of everyday practice. But the debates did reveal what the academic lawyers thought about what lawyers should be doing and the virtue of the law they were practicing. 22 Id. at 31. Cambridge Histories Online © Cambridge University Press, 2008 100 Alfred S. Konefsky VII. THE REGULATION OF THE PROFESSION: ETHICAL STANDARDS, MORAL CHARACTER, CIVIC VIRTUE, AND THE ADVERSARY SYSTEM In the face of widespread public criticism of the profession, lawyers faced a dilemma: how to regulate the conduct and behavior of their profession without at the same time conceding that their critics had a point. The problem was compounded by the fact that during the first half of the nineteenth century there was virtually no formal regulation of the conduct and behavior<,BR>of attorneys. To the extent there was any supervision, it appeared to be self-regulation, but not self-regulation in a modern sense governed by codes of professional responsibility with rules or principles explicitly delineated. Rather regulation seemed to be left to the individual moral compass of each attorney perhaps reinforced by the norms of a professional culture. As long as the attorneys controlled the education and admission process, they could be vigilant about the moral character of aspirants to the bar, filtering by social class or critical observation the potential rogue attorney. Occasionally the handful of functioning local bar associations might enforce discipline or recommend action by a court. But courts had few guidelines as to appropriate conduct. When confronted with charges of unethical behavior, they had to rely on vague standards drawn from a lawyer’s oath or duties as an officer of the court. As the nineteenth century progressed, the ultimate question became what the social function of the profession was and what ethical guidelines would follow from it. Was it a profession whose legitimacy was grounded in its service to the public, with ethical rules to fit accordingly, or was the profession’s primary responsibility to its clients, with rules adapted to the evolving practice of law in a market economy? The real task of the defenders of the role of the profession was to convince the critics, both internal and public, that law as a higher calling always had the interests of the community in mind and that the rhetorical posture of those participating in the debates over ethics was to forge standards that would foster, if not cement, the importance of providing legal services in a government of laws, and not men. The problem was that many more men were now practicing law, and it was probably going to be impossible to account for them or to testify as to their suitability. That anxiety helped feed discussion of what it meant to be an ethical lawyer. Two figures predominate in America’s antebellum discourse on the ethical conduct of lawyers, David Hoffman and George Sharswood. They embraced slightly different positions. Hoffman, a member of the elite Baltimore bar and a Federalist in the throes of anxiety for the lost republic, attempted Cambridge Histories Online © Cambridge University Press, 2008 The Legal Profession 101 to recast the profession in a fading republican vision in fifty “Resolutions in Regard to Professional Deportment,” a kind of incipient code of professional responsibility appended to the second edition of his A Course of Legal Study, published in 1836. According to Hoffman, lawyers should be guided by their moral sentiments and judgments. They should exercise a critical analysis about the justness of their client’s claims and refuse to participate in pursuing unfair or wrong causes, to engage in questionable tactics to vindicate the interests of clients, or to seek unfair advantage – in other words, lawyers should always behave as virtuous citizens. Hoffman stood in contrast to the notion asserted by Lord Brougham in England in the early nineteenth century that the lawyer’s role was to pursue his client’s interest zealously. In resolution after resolution, Hoffman meticulously laid out how lawyers confronted with difficult situations in practice should exercise their critical, moral judgment: “My client’s conscience, and my own, are distinct entities: and though my vocation may sometimes justify my maintaining as facts, or principles, in doubtful cases, what may be neither one nor the other, I shall ever claim the privilege of solely judging to what extent to go.”23 As a trained elite, lawyers should reserve the right to express their independent moral judgment, not just their professional judgment derived from their special knowledge or skill. For Hoffman, professional judgment and moral judgment went hand in hand. Hoffman’s was a nostalgia for a lost age. Suspicious of open bar admission and unsupervised legal education (with law schools slow to develop), he believed that moral codes were necessary perhaps because the elites could no longer rely on lawyers to attend to the public good. By proposing ethical rules, Hoffman seemed to be conceding that private interests were now dominant and that what were really required were special standards for a world of zealous advocacy. If the bar could no longer control admission by ties of class and status, at least it could try to influence the character of those admitted by providing them with the ethical rules, guidelines, or prescriptions that formerly they might have been assumed to possess as second nature by dint of social upbringing. Lawyers now needed the rules spelled out explicitly, since the hustle and bustle of the marketplace had become the norm. Who did the lawyer owe his primary obligation to: the public or the client? Under republican theory, as one of Hoffman’s allies remarked, the lawyer “feels that his first duties are to the community in which he lives”24 and not necessarily to his client. 23 David Hoffman, A Course of Legal Study (2nd ed., 1836), 755. 24 Simon Greenleaf, “A Discourse Pronounced at the Inauguration of the Author as Royall Professor of Law in Harvard University (1834).” Cambridge Histories Online © Cambridge University Press, 2008 102 Alfred S. Konefsky Others were becoming less sanguine and more realistic about a lawyer’s obligations. One was George Sharswood, a law professor at mid-century at the University of Pennsylvania, destined toward the end of the century to be Chief Justice of the Pennsylvania Supreme Court. In 1854, Sharswood published A Compendium of Lectures on the Aims and Duties of the Profession of Law (published in later editions as An Essay on Professional Ethics). Sharswood moved beyond Hoffman’s moral imperatives. Though he was troubled by the idea of abandoning reliance on moral principles, Sharswood carefully tried to construct an ethical world that reflected law practice and yet, at the same time, constrained some of the perceived excesses of zealous advocacy. Perhaps shadowing debates in the legal periodicals of the time and justifying the value of a client-centered practice, Sharswood saw the contemporary ethical universe in shades of gray. A client should expect devotion from his attorney and an attorney must do everything he can for his client, within the law. As to distinguishing morality from law, Sharswood appeared reluctant to insist on rigid, moral stances. Lawyers might on occasion, depending on the situation, reserve the right to reject a client, but once a cause was accepted, zealous representation would follow. Sharswood and others were in some senses on the horns of a dilemma, in part precipitated by the diverging demands of the republican tradition. Lawyers could be perceived as bastions of republican virtue by remaining independent of clients’ interests and above the fray, though this was increasingly difficult in an expanding and interconnected market society, or they could embrace their clients’ causes as their own and assert independence from others on behalf of their clients. Therefore, a lawyer could either evaluate from the outset whether justice was attainable in his client’s cause or accept his clients more or less as he found them, and pursue justice as the client saw it, without assessing the consequences for the general community.25 Lawyers at mid-century were increasingly sensitive to charges that they were simply mercenaries. Over time, in professional journals and on other occasions, they took great pains to explain why zealous advocacy served everyone’s interest, including the community. They were not entirely successful in convincing a skeptical public. They had better luck convincing themselves, but in doing so they ran the risk of conceding publicly either that the bar had a public relations problem, or that some of the charges were true, or that the profession, as perceived by elites, was in a period of decline. The risk, of course, was that if the bar recognized the legitimacy of 25A version of this point is made in Norman W. Spaulding, “The Myth of Civic Republicanism: Interrogating the Ideology of Antebellum Legal Ethics,” Fordham Law Review 71 (2003), 1397, 1434. Cambridge Histories Online © Cambridge University Press, 2008 The Legal Profession 103 the complaints, the next logical step would be calls for regulation, because self-regulation would be interpreted as unavailing or self-serving. The trick for lawyers who were called on to justify the evolution of the professional norm of zealous advocacy was how to fit this norm within the warm rhetorical embrace of fading republicanism. For a profession and a public accustomed to hearing (if not as often believing) lawyers’ attempts to justify the bar by invoking republican ideas about virtue and the public good, defending lawyers’ own private interests was no mean task. In a democratic society concerned in theory with equality, convincing the public of the legitimacy of a self-described learned and educated elite took some doing. When it came to defending the ethical standards associated with zealous advocacy, the bar had only a few intellectual choices. It could admit that zealous advocacy was for private interest or gain. Or it could try to convince the public that zealous advocacy was yet another selfless act by lawyers serving their communities; that what lawyers were doing was consistent with republican virtue because lawyers were not acting in their own behalf, but selflessly for others; that the nature of legal representation had changed as society changed; and that lawyers were still meeting the needs of a public they had always served. Much of the anti-lawyer sentiment sought to strip away the veil of the public-spirited rationale of lawyers. The bar, attuned to the critique, tried to secure its place in society by reassuring its members that it was doing society’s work and carving out ethical prescriptions to meet its needs. CONCLUSION In 1870, the nature and face of the profession were about to change. The end of the Civil War set in motion forces already gathering in antebellum America. The population was expanding, and the inexorable shift from rural to urban had begun. Immigrants and the children of immigrants added diversity to what once was a relatively homogeneous population. Former slaves, now free, had to cope with the ambiguous promise of freedom. Economic growth fueled by expanding railroads, developing interstate markets, and large industrial corporate organizations with proliferating labor requirements occurred in new and increasingly complex fashion. The bar and the practice of law adjusted as well. The organization of practice slowly shifted. Though solo practitioners remained the backbone of the profession, and apprenticeship the main means of legal education, groups of lawyers with specializations began in increasing numbers, particularly in cities, to organize themselves into partnerships and then firms. As usual, the bar’s elite remained concerned about who was admitted to practice. Bar associations, long dormant, were revived to maintain standards for Cambridge Histories Online © Cambridge University Press, 2008 104 Alfred S. Konefsky entry and behavior. Lawyers also continued to participate in political life, safeguarding the Constitution and social order and never entirely losing sight of republican virtues. The bar refocused and redoubled its efforts to cope with the demands that shifting demographics placed on admission and professional education, with alterations in forms and organization of practice, and with the reconfiguration and restatement of ethical norms. The pressure for change was in part resisted by recurring to the lessons of the past, a reliance on redesigned and redefined commitments to public citizenship as the true calling of the profession. Over the century from the Revolution to the CivilWar, the profession changed subtly to avoid or rise above criticism, adopted educational practices to control access to the profession and professional knowledge, expanded the number of lawyers and variety of practices to create and serve markets for legal services, reshaped ethical and moral standards to fit the demands of modern markets, and confronted the nature of law itself to ensure that the state served society. The bar’s invocation of change, particularly its rhetoric, was not without its ironies, not the least of which was that, contrary to elite fears, the growth and expansion of the profession would lead to enhanced power and status in society. Opportunity and equality in the long run helped maintain the status of the bar as more people became lawyers, and the goals and norms associated with the hallmarks of professionalism and expertise reinforced rather than undermined social stability. When the ideas that animated professional legal identity came under pressure, lawyers sought to capture the shifting ideology, recast it in the bar’s own image, and shape the ideology to serve the profession’s own purposes. As a result, as America emerged from its shattering, destructive Civil War, attorneys, unlike almost any other professional group, were positioned to lead the country’s reconstruction and beyond. Lawyers had survived and prospered, and they were prepared once more to direct their energy toward their understanding of what was necessary for the public good, even as what exactly the public good was would increasingly become contested. Of the many figures born before the CivilWar who sought immediately thereafter to escape the profession’s earlier limitations, three in particular, in very different ways, foreshadowed the future. John Mercer Langston, one of the few practicing African American lawyers before the war, participated in Reconstruction America in the training of African American lawyers at the newly founded Howard University Law School in Washington, DC, heralding the embrace of newly found citizenship for some or, for others, the fulfillment of the meaning of citizenship. Myra Bradwell, pursuing a lifelong professional interest in law in Chicago, fought for admission to the bar, only to be rejected in her quest for formal professional identity by a Cambridge Histories Online © Cambridge University Press, 2008 The Legal Profession 105 U.S. Supreme Court that could not allow her constitutional claim to escape their narrow views of a woman’s proper role. And Christopher Columbus Langdell fled aWall Street practice, beckoned by President Eliot of Harvard to reconstitute law as a science and reframe American legal education in the shape of the modern Harvard Law School. Langdell sought to professionalize the study of law and remove it from the dead hand of law office ritual and part-time university lecturers – all to prepare lawyers to meet the challenges of a new economic order increasingly remote from its roots. The question for the profession as it embarked on its new journey was whether it would inadvertently rediscover its past, or reject its past, or simply be condemned in new forms to repeat it. Cambridge Histories Online © Cambridge University Press, 2008 4 the courts, 1790–1920 kermit l. hall I. INTRODUCTION: COURTS AND DISTRIBUTIVE JUSTICE IN THE NINETEENTH CENTURY With independence, Americans achieved one of the crucial goals of the Revolution: direction over their economic future. The process of economic transformation and the social and political changes that accompanied it quickened over the next century. Alexis de Tocqueville in the 1830s observed that the quest for “profit” had become “the characteristic that most distinguished the American people from all others.” Signs of economic transformation dotted the landscape. By 1920, trains knitted the continent together; steamships plied the interior lakes and rivers and extended into international commerce; airplanes extended warfare to the skies; the telegraph and the radio provided unprecedented levels of communication; smoke belched from scores of new factories; cities such as Chicago and San Francisco thrived; and a great torrent of immigrants swept over the nation’s borders. The personal, informal, and local dealings that typified the colonial economy yielded in the nineteenth century to an impersonal national and international market economy. Increased trading among private individuals for profit was one of the central developments of the period from the nation’s beginning through the Progressive Era. Social and political changes accompanied the nation’s accelerating economy. At the middle of the nineteenth century slavery posed a massive contradiction to the underlying proposition that all men were created equal. Perhaps even more importantly, as the nation spread across the continent, slavery raised serious political questions about how free and slave labor could coexist. After the CivilWar the nation had to wrestle with the fate of 4 million persons of African descent previously held in bondage. The war was also a struggle over the relationship of the states to the nation, the powers of the national government, and more generally the power that government 106 Cambridge Histories Online © Cambridge University Press, 2008 The Courts, 1790–1920 107 at all levels should wield in dealing with issues of health, safety, morals, and welfare, the so-called police powers. The exploding market economy had other consequences. The opportunity for economic gain lured millions of persons of foreign birth and often non-Protestant religions to America’s shores. This unprecedented influx of human beings provided badly needed labor but it also undermined the traditional hegemony of white, Protestant America. Native Americans were driven increasingly from their original lands and eventually placed on reservations. Women and even children entered the labor market, the population shifted from rural to urban, and corporations arose as the primary means of conducting business. The American political system had seen as much change as the economy and society. Political parties, disdained by the Founding Fathers, quickly emerged as a necessary means of providing unity to separated and divided governments constitutionally mandated in both the states and the nation. Parties then evolved into mass movements that broadened the base of politics, albeit without including women and African Americans. The parties themselves ultimately became a source of concern, and by 1900 a new reformist movement, the Progressives, emerged with the promise of corruption-free government founded on a scientific, non-partisan, and rational approach to governance. They challenged the prevailing political paradigm and, among other goals, urged that politics and law, courts and politicians, be divorced from one another. Progressive criticism of the role played by courts and judges was as widespread as progressive criticism of the state of American politics. The concern was appropriate. Throughout the preceding decades both had helped to reshape the distribution of wealth that flowed from agreements reached among private individuals. But it would be a mistake to conclude that the results were expressly the work of judges in particular or lawmakers in general. As much as driving actions taken by merchants and bankers, lenders and borrowers, farmers and planters, and business people and laborers, courts reacted to them. Over the course of the nineteenth century, that is, simply adjusting existing legal rules to new economic realities became one of the chief contributions of courts, state and federal. That said, legislators, state and national, did intervene in the economy with varying degrees of success. Hence, a constant interplay between judges and legislators over economic rights characterized the era. When legislators, for example, attempted to regulate the impact of economic change, courts sometimes struck their actions down as a violation of individual and corporate rights. Throughout the era courts tried to answer the critical question of how to allocate through law the costs, benefits, rewards, Cambridge Histories Online © Cambridge University Press, 2008 108 Kermit L. Hall and risks associated with an increasingly acquisitive commercial market economy. This meant, almost inevitably, that the question of distributive justice became one of the courts’ most pressing concerns. In turn, a focus on distributive justice meant that the courts found themselves operating in a sometimes awkward embrace between law and politics. Tocqueville is once again helpful. He observed that in America eventually every political issue became a legal cause and the courts the forum for its resolution. The famed French visitor went on to explain that “the Americans have given their courts immense political power.” Tocqueville’s words offer an enduring insight into the interaction among politics, law, and courts, the rich brew from which distributive justice flows. Scholars and public commentators may debate the desirability of dispassionate and apolitical justice, but the historical reality of the courts in action, at all levels and in all places, underscores that they have generally been unable to escape shaping public policy, even when that might be their desire. Because, from the earliest days of the Republic, the courts have been embedded in and formed by politics, they have always been the subject of intense debate. Never was this truer than during the nineteenth century. The scope and substance of their dockets, how courts should be structured, staffed, and administered – every aspect of what they did was scrutinized intensively. The courts addressed issues of distributive justice through a unique scheme of judicial federalism that matured during these years. America at its inception had two distinct systems of courts, one federal and the other state. Traditionally, the federal system generally and the Supreme Court of the United States in particular have commanded the lion’s share of attention. This emphasis on the justices and their work calibrates the entire American court system by the actions of nine justices and gives exceptional weight to the federal courts. The perspective is not necessarily unreasonable; any account of courts in American history must pay serious attention to the Supreme Court and the lower federal courts. Indeed, the trend over the course of the century unmistakably recommends that attention. As America expanded geographically and burgeoned economically, so the stature of the federal courts grew with it. Especially in the wake of the Civil War and Reconstruction, a continental empire required a federal court system capable of bringing stability, certainty, and a national rule of law. Even so, during the nineteenth century the great body of day-to-day justice took place in the state trial and appellate courts, not the federal courts. Nor did growing federal judicial power necessarily come at the expense of state courts, which saw their importance and prestige increase too, as that of state legislatures decreased. When Americans became wary of their legislatures, it was to state appellate courts that they turned. Cambridge Histories Online © Cambridge University Press, 2008 The Courts, 1790–1920 109 In short, as Tocqueville noted, Americans showed a tendency to place unprecedented faith in courts, whether state or federal. The story of the courts during these years is thus one of accelerating responsibility, of growing involvement in issues of distributive justice, and of increased importance in hearing, if not always settling, some of the century’s thorniest political issues. It is also, on balance, one of an unwillingness to embrace equally those who did not already have power within the political system. II. STATE COURTS AND JUDICIAL FEDERALISM Americans tend to view the court system from the top down, although ironically they tend to live in it from the bottom up. From the nation’s founding, the courts have been strongly local institutions. As the great legal historian James Willard Hurst explained, the colonial courts of general jurisdiction (civil and criminal) were laid out almost on a neighborhood basis: the geographic scope of a court was determined by the distance that a person could ride a horse in one day, which frequently coincided with the boundaries of a county. The first state constitutions followed this same pattern. One of the unique features of these courts was the overall independence they exercised over case flow, finances, and court administration. This emphasis on localism continued in most states well into the twentieth century and produced an often luxuriant crop of frequently parochial courts. As the political scientist Harry Stumpf points out, by 1920 the Chicago metropolitan area had more than 500 different courts. Participants in the emerging commercial market economy, however, increasingly demanded that hierarchy, specialization, and professionalism be imposed on the courts. During the nineteenth century the courts gradually devolved from their initial three-tiered ordering (a variety of courts of limited jurisdiction at the bottom, state trial courts of general jurisdiction in the middle, and an appellate court at the top) into what was typically a five-layered system. The bottom layer comprised justice of the peace or magistrate courts, the latter to be found largely in rural areas. The second layer grew out of the inadequacies of the first as, at the end of the nineteenth century, a few states began to establish municipal courts of limited jurisdiction, accompanied by specialized courts such as those devoted to juveniles. At the next, third, level one finds trial courts of general jurisdiction, which handled both civil and criminal matters. The fourth layer again emerged in the late nineteenth and early twentieth centuries, when many states created intermediate courts of appeals primarily in response to population growth and attendant rising rates of litigation and greater demands on the courts. Given the rapid expansion of judicial business, intermediate appellate courts were Cambridge Histories Online © Cambridge University Press, 2008 110 Kermit L. Hall designed to filter cases on appeal and so reduce the workload of the fifth and final tier, the highest appellate courts, which were usually called supreme courts. State Courts of Limited Jurisdiction The bulk of the legal business in the United States was handled by the first two tiers of state courts, those of limited and specialized jurisdiction. These courts had the most direct impact on the day-to-day lives of citizens, whether rich or poor, native or foreign born. Taken together, these courts heard about 80 percent of all legal disputes and in almost all instances their decisions were final. The courts of limited jurisdiction had a broad range of responsibilities and modest resources with which to exercise them. In criminal matters they dealt with minor offenses, such as petty larceny and burglary, and had the power to impose only limited punishments – fines, usually by 1920 no more than $1,000, and jail terms, usually not longer than 12 months. These offenses constituted the great majority of all criminal matters, which meant that most criminal justice was meted out by underfunded and understaffed courts in often hurried and uneven ways. Nor did courts at this level keep any comprehensive record of their proceedings. Many kept no record at all. The lack of records meant appeals were difficult and infrequent. Until the first third of the twentieth century the judges of these courts had either little or no training in the law. Initially appointed from local elites, by the third decade of the nineteenth century the great majority of judges at the lowest levels were elected, most on partisan ballots, and held their offices for limited terms. When Tocqueville visited the United States, the practice of electing inferior court judges was sufficiently widespread that it drew his attention and wrath. Like more recent critics of judicial elections, Tocqueville concluded that election coupled with limited terms reduced the independence of judges and left them vulnerable to the prevailing political winds. The judicial role itself was not well defined. In rural areas and small towns, judges often held other positions, serving, for example, as ex officio coroners. Numerous studies have revealed that judges of courts of limited jurisdiction tended to show a strong presumption about the guilt of those who appeared before them and, as a result, focused their attention not on questions of guilt or innocence but rather on the sentence to be imposed. They were usually compensated by fees rather than salary, which meant that their incomes varied according to the proportions in which those brought before them were adjudged guilty. Cambridge Histories Online © Cambridge University Press, 2008 The Courts, 1790–1920 111 State Courts of General Jurisdiction The trial courts of general jurisdiction formed the next layer. When Americans think of courts, it is these, which hear and decide civil and criminal matters at trial, that they generally have in mind. While similar in character they often varied in actual operation. For example, in many states, these courts heard appeals from lower courts of limited jurisdiction in addition to functioning as courts of original jurisdiction. In some states, the jurisdiction of these courts was divided into two divisions, one civil and the other criminal. Courts of general jurisdiction had an array of names, which could imply that similar courts enjoyed very different jurisdictional capacities: In California, for example, courts at this level were known as superior courts, in other states they were circuit or district courts, and in New York they were called supreme courts. (In that state, the highest appellate court became the Court of Appeals.) The judges of these courts of general jurisdiction invariably had formal legal training, were better paid than their counterparts on courts of limited jurisdiction, and enjoyed better facilities. After mid-century they too were almost always elected to office, for limited terms of service. Courts of general jurisdiction were also courts of record, which meant that taking appeals from them was far easier than with courts of limited jurisdiction. Trial courts of general jurisdiction were the principal places in the legal system where grievances of the most serious kind were converted into formal legal disputes. Most of their business was civil rather than criminal – some 60 percent of the trials held in the United States during the nineteenth century involved civil, not criminal matters. Reliant in most instances on juries to render verdicts, the trial courts performed the vital function of taking complex grievances and addressing them through an adversarial process. This forced aggrieved parties to frame their disputes in formal, legal ways. For example, a person injured in a railroad accident would make a claim based on the emerging law of torts, a business person attempting to collect money would turn to the law of contract, and so forth. The legal framing of these disputes was important because the time and cost associated with doing so more often than not prompted a settlement without resort to a formal trial. As is true today, the pattern was for parties to settle their differences before having a jury do it for them. And, just as today, litigants with greater resources had a better chance of prevailing when they did go to trial. These phenomena were not confined to civil litigation. Out-of-court settlements occurred in criminal trial courts where they were known as plea bargains. There too, defendants with money to buy the best legal counsel Cambridge Histories Online © Cambridge University Press, 2008 112 Kermit L. Hall were at a major advantage. Most perpetrators of crimes in the nineteenth century were never caught, let alone brought to court. Those most likely to be caught and charged were persons committing the most serious crimes (rape, murder, theft, burglary); murder showed the highest rate of success. Property crimes were far less likely to be cleared. Overall, less than 2 percent of all reported crimes resulted in final settlement by trial and verdict. Instead, plea bargains, supervised and approved by trial court judges, were struck. The courts of general jurisdiction bore the brunt of a surging population, an accelerating economy, and the inevitable recourse to law that accompanied both. The composition of their dockets mirrored the social and economic circumstances of industrialization. By 1890, civil trial courts in Boston, for example, had more than 20,000 plaintiffs a year. The courts were asked to address issues involving business relationships, real estate transactions, financial arrangements, and injuries associated with the growing complexity of urban life. The courts became safety valves of sorts, mediating conflicts among strangers stemming from business transactions or transportation accidents. The vast majority of these cases were cut-anddried. Debt collection was the main theme: grocers, clothing stores, and doctors asked the courts to make their debtors pay. In 1873, Ohio’s courts of general jurisdiction handed down more than 15,000 civil judgments worth more than $8.5 million. In December 1903, there were more than 5,100 cases on the dockets of Kansas City’s courts, about 60 percent of them liability claims against companies. As the civil business of the courts increased, the inability of the era’s generally decentralized and unprofessional court system to deal with the results became ever more evident. In 1885, a special committee of the American Bar Association found that under then-existing conditions, processing a lawsuit all the way to decision took from one and a half to six years. In 1876, New Hampshire’s county circuit courts had 4,400 cases continued on their dockets; 6,000 new cases were added the following year. Crowded dockets and delays were the norm. The rising professional bar demanded more courts and more judges. In the Progressive era, in some instances, the bar would have its demands answered. State Appellate Courts Business grew at the top of the hierarchy no less than everywhere else in the judicial system. By 1900 the work of the nation’s appellate courts amounted to about 25,000 cases annually. These cases sustained more than 400 different series of case reports. New York’s famous Court of Appeals, perhaps the Cambridge Histories Online © Cambridge University Press, 2008 The Courts, 1790–1920 113 most revered high court in the late nineteenth century, handed down almost 600 decisions a year. Between 1890 and 1920, the Illinois Supreme Court produced between 700 and 900 decisions annually. The California Supreme Court in 1860 published about 150 opinions. By 1890 that number had tripled. By 1920, however, organizational changes instituted by Progressive reformers had cut the court’s output by more than half. One of the most important innovations adopted was establishment of an intermediate court of appeals designed specifically to relieve the workload of the high court. Other states soon joined California in this reform effort. Intermediate courts of appeal had not existed through most of the nineteenth century. By the beginning of the twentieth century, however, they had emerged as an increasingly popular solution to the problem of rapidly expanding appellate dockets. By 1911, thirteen states had created intermediate appellate courts. A century later, forty-two states had done so. The reform clearly reduced the flow of cases going to the highest appellate courts. More important, by granting the judges of the highest appellate courts choice over the appeals they heard, they allowed state high courts to set their own agendas. The diffuse nature of the American appellate courts reflected historical practices and traditions of the bar that varied from state to state, as well as differing assumptions among constitution writers about how best to fit courts to social needs. The confusing nomenclature of these courts makes the point. For example, the highest court of last resort in Maine and Massachusetts was called the Supreme Judicial Court; in Maryland and New York it was known as the Court of Appeals; in Ohio it was called the Supreme Court. In most states the intermediate appellate courts were separate entities, but in a few states, such as Texas beginning in 1891, these courts were formed into separate divisions for criminal and civil appeals. Appellate courts had to contend with state legislatures jealous to preserve their own prerogatives from trespass by other branches of government. This meant, among other things, that initially in the nineteenth century they put judges on short leashes and limited judicial authority. Thus, in 1809 the Ohio Senate tried Judges George Tod and Calvin Pease for subverting the state constitution by undertaking as judges to pass on the constitutionality of an act of the legislature. Both trials ended with ‘guilty’ votes of a majority of the senators – one short of the two-thirds required for conviction. Early in the Republic, many state legislatures continued the colonial practice of themselves acting as appellate tribunals, setting aside judicial decisions on their own authority. The willingness of the legislatures to do so suggests their inheritance from the pre–Revolutionary era of a certain distrust of courts, which were seen as arbitrary and coercive. The same Cambridge Histories Online © Cambridge University Press, 2008 114 Kermit L. Hall distrust is evident in most state constitutions, which designed courts with blended common law and equity jurisdiction because of lingering fears about the discretionary powers of equity courts. Despite these difficult beginnings, between 1790 and 1920 state appellate courts acquired an increasingly greater level of authority and control over their dockets, a pattern that paralleled developments in the federal courts. Notwithstanding their diversity, the state courts of last resort shared several similarities. On each court, appeals were heard by a relatively small number of judges (from three to nine) serving fixed terms (on average about seven years; a very few state judges, like their federal counterparts, enjoyed tenure during good behavior). State appellate judges were invariably active politically before their judicial service; after mid-century they reached their posts most frequently through popular, partisan elections. Appellate judges had formal legal training, typically during the nineteenth century by reading in the office of a lawyer or with a judge; by 1920 about 65 percent of appeals court judges had either attended or graduated from law schools. Increasingly, judges joining the courts came from less privileged backgrounds with fewer connections through birth and marriage to other lawmakers. Finally, every state court of last resort enjoyed final authority to determine the meaning of the state’s constitution. The highest state courts were kept generally busy throughout the century. Their sustained engagement in the legal affairs of the state meant that they were deeply implicated in shaping and maintaining the social order. In the pre–Civil War South, for example, these courts regularly heard cases involving slavery, ranging from the power of masters to discipline their slaves to the legitimacy of contracts made for the sale and transport of human chattel. Most slave justice occurred beyond the reach of the rule of law. From time to time, however, slaves and their masters came into the courtroom, even into the highest courts of appeal. Judge Joseph Henry Lumpkin of the Georgia Supreme Court in 1852 acknowledged the paradox of giving any expression to the idea of legal rights when it came to a slave. Lumpkin appreciated the humanity of the slave, but he accepted at the same time that the slave could never stand as an equal, either to his or her master or to the state of Georgia. Under such circumstances the court might have paternalistically protected the interests of the slave. For example, when Lumpkin considered an appeal by a slave convicted of rape, he noted that “a controversy between the State of Georgia and a slave is so unequal, as of itself to divest the mind of all warmth and prejudice, and enable it to exercise its judgment in the most temperate manner.” That said, Lumpkin sustained the slave’s guilty verdict and subsequent hanging. Other Southern judges took the slave’s humanity into account. In Ford v. Ford (1846), Nathan Green of the Tennessee Supreme Court ordered a slave freed through a will Cambridge Histories Online © Cambridge University Press, 2008 The Courts, 1790–1920 115 despite the contention of his deceased master’s family that a slave could not possibly sue in a court. After the war these same courts had to address issues of racial segregation. In almost every instance they upheld the power of the state to discriminate. Nor was court tolerance of discrimination a peculiarity of the South. Racial groups outside the South won no more support from the highest appellate courts. The California Supreme Court refused to block the state legislature from imposing special liabilities on Chinese and Japanese immigrants, including limiting their rights to hold and use real property.Women fared little better. The Illinois Supreme Court, for example, in 1872 denied Myra Bradwell, who founded and published the Chicago Legal News, admission to the bar because she was a woman. In every state economic change imposed heavy demands on the highest appellate courts of the states. From 1870 to 1900 more than one-third of the cases decided in these courts dealt with business matters, such as contract, debt, corporations, and partnerships. Another 21 percent involved real property. Thereafter, litigation patterns began to shift gradually away from business and property disputes and toward torts, criminal, and public law matters. By 1920, litigants were coming to realize that alternative ways of handling disputes, such as arbitration, were preferable to the courts, where outcomes were expensive, technical, and above all slow to eventuate. We have seen that during the first half of the nineteenth century, state appellate courts found themselves confronted by legislatures anxious to constrain the encroachment of judicial authority on their own prerogatives. By the middle of the century, however, the authority of legislatures was coming under general attack, the outcome of growing public concern over corruption and the fiscal problems that legislative corruption imposed on the citizenry. The result was a tendency among constitutional reformers to add to the authority of state courts of last resort by providing for the popular election of their judges to limited terms of office. In 1832, Mississippi became the first state to make provision for election of state appellate judges, followed quickly by New York, Ohio, and several other states. Of twenty-one constitutional conventions held between 1842 and 1860, nineteen approved constitutions that allowed the people to elect their judges, often on partisan ballots. Only in Massachusetts and New Hampshire did delegates repudiate the concept, and in both instances voters rejected the delegates’ work. On the eve of the CivilWar, twenty-one of the thirty states had adopted popular election. While this reform is usually interpreted as an attempt to limit judicial authority, it was intended to do just the opposite. With the wind of popular election at their back, state appellate court judges began passing on the constitutionality of legislation at an unprecedented rate. Cambridge Histories Online © Cambridge University Press, 2008 116 Kermit L. Hall Before the Civil War, review of state statutes by state courts was “a rare, extraordinary event.” Before 1861, for example, the Virginia Court of Appeals, the state’s highest appellate court, had decided only thirty-five cases in which the constitutionality of a law was in question. Of these, the judges overturned the legislature on only four occasions. The Supreme Judicial Court of Massachusetts, one of the two or three most prestigious appellate courts in the nation before the Civil War (and one that to this day has appointed rather than elected judges), had by 1860 considered the constitutionality of sixty-two laws. It struck down only ten. Over the following sixty years, however, judicial review became an important practice in state courts of last resort and, if still controversial, an accepted feature of public life. The Virginia Court of Appeals, for example, found against one in every three of the statutes that came before it during the last third of the nineteenth century. Ohio’s Supreme Court held 15 state laws unconstitutional in the 1880s, 42 in the 1890s, and more than 100 in the first decade of the twentieth century. The Minnesota Supreme Court in the period between 1885 and 1899 struck down approximately seventy statutes; the Utah Supreme court between 1893 and 1896 threw out eleven of the twenty-two statutes brought before it. Judicial review went hand in hand with new legal doctrines designed to address the consequences of industrialization. One of the most important was the doctrine of “substantive due process,” by which courts held it appropriate to judge the constitutionality of legislative action not simply according to procedural criteria of fairness but by examination of substantive outcomes. The American Law Review summed the matter up nicely at the end of the nineteenth century: “it has come to be the fashion . . . for courts to overturn acts of the State legislatures upon mere economical theories and upon mere casuistical grounds.” The New York Court of Appeals set the doctrinal stage in the 1856 case ofWynehamer v. People, when it invoked substantive due process to strike down a law designed to regulate the liquor business. Thereafter the doctrine grew luxuriantly. The Iowa Supreme Court in 1900 nullified a statute that permitted the use of oil for lighting purpose only in lamps made by a particular manufacturer, but not in other lamps. The judges reasoned that any manufacturer capable of producing the required oil should be able to sell it to whomever they pleased. By the early twentieth century, state courts were regularly striking down statutes based on their reading of state constitutions. Because state constitutions had become both longer and more code-like in character over the course of the nineteenth century, the courts of last resort found more and more grounds on which to act. Between 1903 and 1908, for example, state courts struck down more than 400 laws. Although the state appellate judiciaries generally held office for limited terms, judges claimed that Cambridge Histories Online © Cambridge University Press, 2008 The Courts, 1790–1920 117 election provided them sufficient popular support to legitimize their interventions. The tendency to increased judicial activism needs to be kept in perspective. State appellate courts upheld the vast majority of economic regulatory legislation, leaving legislatures to apply state police powers broadly. Legislation that remained unquestioned included, for example, regulation of the professions, development of a system of occupational licenses, and limitations on the hours and conditions of labor. Still, appellate judges by 1920 had firmly established their right to decide conclusively what their state constitutions meant. State Courts and Reform The claim of judicial review drew the attention of Progressive reformers. State judges, they argued, exercised the,ir powers of review indiscriminately; they campaigned for office by promising that once on the bench they would decide issues not on the merits but with particular, predetermined outcomes in mind. The American Judicature Society took steps to promote adoption of non-partisan judicial elections, as well as measures to force disclosure of the sources of contributions to judicial election campaigns, and to encourage greater judicial professionalization. The most important gains occurred in heavily urban states, such as New York, where judicial corruption and boss-driven politics were connected. The Society’s greatest success would not come until the 1940s, however, when it pioneered the so-called Merit or Missouri Plan of judicial selection to reduce partisanship and electioneering in judicial selection. The attack on accepted partisan forms of judicial election was one facet of a broader effort to rein in the direct impact of politics on the courts while elevating the professional administration of justice generally. Future Harvard Law School dean Roscoe Pound initiated this movement in 1906 when he authored a wholesale indictment of the shortcomings of state court systems. State courts, Pound charged, were rife with corruption and influence-peddling. They were also by and large completely incoherent in their approaches to law, notably at the lower levels of limited and general jurisdiction. As illustration of the state courts’ shortcomings, Pound brought up the example of New York judge Albert Cardozo, father of future Supreme Court Justice Benjamin Cardozo, who some thirty years before had been convicted and jailed for taking bribes. Pound’s report concluded that each state’s courts should function as an integrated system in order to break down what Pound viewed as a destructive pattern of local autonomy. That meant, among other things, bringing greater administrative coherence to their operation, so that courts located beside one another would in fact Cambridge Histories Online © Cambridge University Press, 2008 118 Kermit L. Hall know what the other was doing. The goal was to unify the court structure by consolidating and simplifying its management, budgeting, financing, and rule making. Pound’s unification movement was only beginning to gather steam by 1920, and it has proceeded by fits and starts since then. For all of these reform efforts, the state courts remained very much creatures of the political cultures in which they operated. Pound’s call for reform blended with growing demands after the Civil War from the developing legal profession to improve the quality of state courts. As lawyers organized themselves as a profession, they expected judges to become more professional as well. First, new state bar associations, then the American Bar Association, founded in 1878, and then the American Judicature Society campaigned to improve municipal and metropolitan courts and to promote specialization of courts. For example, the movement to record proceedings in several major municipal court systems dates to the early twentieth century. Several states, following the model of the first juvenile court in Chicago in 1899, began to adopt statewide systems of specialized courts that provided consistency and predictability in application of the law. Growing concerns about the fate of juveniles were echoed in increasing doubts about the viability of the family and the adequacy of the existing court structure to deal with matters of adoption, divorce, and child custody. In 1914 Cincinnati pioneered the development of courts with jurisdiction over cases involving both children and families. Similar courts appeared shortly thereafter in other selected cities, including Des Moines, Iowa; St. Louis, Missouri; Omaha, Nebraska; Portland, Oregon; Gulfport, Mississippi; and Baton Rouge, Louisiana. The rise of a class of consumers generated a new stratum of small claims courts, although they did not necessarily function to protect the buyer. The first small claims court in the United States was established in 1913 in Cleveland as the Conciliation Branch of the Municipal Court. The movement subsequently spread across the nation. Ironically, what was viewed at its inception as a reform designed to give the common person easy access to justice and to unclog the existing courts to deal with more serious matters often became instead a means for doctors, utility managers, and department store heads to collect debts owed by persons usually of modest income. State courts formed the core of the new American legal system, dispensing justice over a broad area in increasingly greater numbers. To all intents and purposes, justice from 1790 to 1920 meant predominantly local justice meted out through local judges embodying the power of the state. This very localism was a source of considerable strength, but also, as Willard Hurst has observed, increasingly of limitation. As the Republic matured, as affairs of economy, society and state grew ever more complex and intertwined, state courts became increasingly vulnerable to incursions from the federal judiciary. Cambridge Histories Online © Cambridge University Press, 2008 The Courts, 1790–1920 119 III. THE CONSTITUTION AND THE ESTABLISHMENT OF THE FEDERAL COURTS The steady expansion of judicial power in nineteenth-century state courts was matched by similar developments in the federal judiciary. What emerged by 1920 was a uniquely American scheme of courts, characterized in particular by a substantially more powerful and influential federal court system than had been in existence at the nation’s inception. The federal Constitution crafted in 1787 was designed to bolster the authority of the national government through the establishment of an independent federal judiciary. While the debates in the Constitutional Convention gave relatively little attention to the issue of courts, the document that emerged sketched an entirely new court system, most fully realized in Article III, but with implications for the federal courts’ structure and function scattered also through Articles I, IV, and VI. Article III established “constitutional courts” based on “the judicial power of the United States,” vested in “one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” As in so many other instances, the framers drew on their state experience in establishing the federal judiciary. Most of them embraced the idea that the federal courts would curb popular excesses while preserving minority rights of property holders. JamesWilson was a notable exception; he believed that the federal judiciary derived its authority as much from the people as did the elected members of the executive and legislative branches. The second most active voice in the Convention, Wilson insisted that the power of judges derived not just from their knowledge of the law but also from the direct grant of authority made by the people to them when the Constitution was created. The federal courts drew intense scrutiny in the ratification debates, and they remained a source of controversy throughout the nineteenth century. Supporters of the new federal judiciary downplayed their importance. Alexander Hamilton insisted in Federalist 78, for example, that the courts would be “the least dangerous branch” because they had access to neither purse nor sword. According to Hamilton, the federal courts would exercise judgment instead of will, and law instead of politics. These together – probity and the rule of law – would become the bedrock of the federal courts’ authority. Behind Hamilton’s words lay a deeper understanding that the success of the American economy depended on federal courts strong enough to impose a national rule of law, one that would bring stability and order to the new nation’s commercial and financial dealings. Anti-Federalist opponents of the Constitution, on the other hand, viewed the federal courts as a threat to the sovereign rights of the states and even to the liberty of the American people. Robert Yates, of New York, insisted that Cambridge Histories Online © Cambridge University Press, 2008 120 Kermit L. Hall the Congress, being accountable to the people, should be the final interpreter of the Constitution and that the role of the new federal courts should be strictly limited. He and other opponents of the federal Constitution argued that by making the courts and their judges “totally independent, both of the people and the legislature . . . [we] are . . . placed in a situation altogether unprecedented in a free country.”1 Article III secured two great structural principles: federalism and the separation of powers. The Supreme Court became the nation’s highest appellate court (it heard cases brought on appeal from other federal and state courts). The lower federal courts were to operate as the trial courts of the federal system, with special responsibilities initially in the areas of admiralty and maritime law. The strong nationalists in the Philadelphia Convention had wanted to specify the structure of the lower federal courts, since they feared that without doing so the already established state courts would dominate the interpretation of federal law. The strongest advocates of state power in the Convention, such as Yates, proposed precisely the opposite – that the task of interpreting the federal Constitution and conducting federal trials should be assigned to these same state courts. The two sides settled their differences over the federal courts by deferring many issues to the first Congress and by leaving the key provisions of the Constitution dealing with the courts vague. This approach stood in contrast to state constitutional documents that typically spelled out in detail the structure of state courts. Article III did mandate the Supreme Court, but it left Congress to determine its size and the scope of its appellate jurisdiction. The Constitution granted the Supreme Court only a limited original jurisdiction in matters involving ambassadors, other public ministers and consuls, and those in which a state was a party. The Constitution was also silent on the question of the qualifications of the justices and the judges of the lower courts. For example, there was no constitutional requirement that a judge be an attorney, although throughout the history of the nation only persons trained in the law have served on the federal bench. Finally, the Constitution failed to specify one of the federal judiciary’s most important powers: judicial review, the practice by which judges declare unconstitutional acts of Congress and state legislatures. The framers certainly anticipated that judicial review would be exercised; the only unknown was its scope. Anti-Federalist Luther Martin, for example, observed during the convention that “As to the constitutionality of laws, that point will come before the Judges in their proper official character. In this character they have a negative on the laws.” It did not follow, however, that they could 1 Essays of Brutus, No. XI, reprinted in Herbert J. Storing, The Complete Anti-Federalist (1981), 2, § 2.9.135. Cambridge Histories Online © Cambridge University Press, 2008 The Courts, 1790–1920 121 do what they wanted; delegates of every ideological stripe posited a sharp distinction between constitutional interpretation necessary to the rule of law and judicial lawmaking. “The judges,” concluded John Dickinson, a Federalist, “must interpret the laws; they ought not to be legislators.” There was, however, a textual basis for the exercise of federal judicial review, especially of state laws. Article VI made the Constitution the “supreme Law of the Land,” and in Article III the courts were named as interpreters of the law. The same conclusion can be reached by combining Article I, section 10, which placed certain direct limitations on the state legislatures, with the Supremacy Clause and Article VI. Simply put, judicial review of state legislation was an absolute necessity under the framers’ compound system of federalism. Here too, nevertheless, the scope of the power remained to be defined. “The Framers anticipated some sort of judicial review,” the famed constitutional scholar Edward S. Corwin observed. Of that, “there can be little question. But it is equally without question that ideas generally current in 1787 were far from presaging the present vast role of the Court.” Article III also conferred jurisdiction (the authority by which a court can hear a legal claim) in two categories. The first was based on subject and extended to all cases in law and equity arising under the Constitution, laws, and treaties of the United States, as well as cases of admiralty and maritime. The second category depended on the nature of the parties in legal conflict. This jurisdiction included controversies between citizens of different states, between a state and citizens of another state, between states, and between states and the nation. Most of the delegates to the federal convention appreciated that the rule of law in a republican government required an independent national judiciary that would be only indirectly accountable. Thus, they granted the president authority to appoint federal judges with the advice and consent of the Senate. Once commissioned, these judges held office during good behavior, their salaries could not be diminished while in office, and they were subject to removal from office only “on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” More telling than the generalities of the Constitution itself, the single most important moment in the development of the federal courts was the Judiciary Act of 1789, a statute whose impact continues to this day. In debating what to do with the federal courts, the first Congress echoed the sentiments of the often conflicted delegates in Philadelphia. Critics of the federal courts in the first Congress continued to insist that they were not necessary, that their roles could be performed by state courts, and that they were, in any case, a “burdensome and needless expense.” These debates remind us of the inherent localism of the American court system. Opponents Cambridge Histories Online © Cambridge University Press, 2008 122 Kermit L. Hall claimed that federal judges would be remote and insensitive to state and local issues and that those persons charged with crimes would be hauled from their homes and tried in faraway places where they and their good characters would not be known. Proponents of a strong national government, led by Senator Oliver Ellsworth of Connecticut, prevailed, and in the Judiciary Act of 1789 Congress exercised its powers to create lower federal courts, just as the Federalists had desired. However, the Act lodged the new courts squarely in the states, a decision meant to placate Anti-Federalists. This politically acceptable compromise established a federal court organization that remained in broad terms unchanged for more than a century. The 1789 act divided the new nation into thirteen districts and made the boundaries of the courts in these districts coterminous with those of the states. (Massachusetts and Virginia received two each, Rhode Island and North Carolina none because at the time they were still not members of the Union.) The act also divided the country into three circuits, in each of which a circuit court consisting of two justices of the Supreme Court and one district judge in the circuit would sit twice a year. The circuit courts, whose history was to be unsettled for more than a century, entertained appeals from the district courts below and held jury trials involving the most serious criminal and civil cases to which the federal government was a party. The Supreme Court itself was composed of five associate justices and a chief justice. The act made Supreme Court justices into republican schoolmasters whose presence in the circuits symbolized the authority of the remote national government. Circuit riding, which persisted in various ways throughout the nineteenth century, also exposed the justices, in their capacity as trial judges, to local concerns. However, circuit riding was unpopular with the justices, for it exacted a heavy physical and mental toll. Justice William Patterson would complain bitterly that his travels through Vermont were so arduous that “[I] nearly went out of my head.” The 1789 act confirmed the power of Congress over the jurisdiction of the lower courts, and indeed over their very existence. Their allotted jurisdiction consisted of admiralty cases (given exclusively to the district courts) and cases concerning diversity of citizenship, with a limited appellate jurisdiction in the circuit courts over district court decisions. Federalists did succeed in section 25 of the act in allowing federal courts to review state court decisions involving federal laws and the Constitution, a provision that stirred heated debate until the Civil War. The new structure was notable because it actually withheld from the federal courts the potentially much broader power to hear all cases arising under the Constitution. As a result, for more than three-quarters of a century state courts played a distinctive Cambridge Histories Online © Cambridge University Press, 2008 The Courts, 1790–1920 123 role in interpreting the nation’s ruling document and some of the laws associated with it. While the creation of a federal court structure below the level of the Supreme Court had a strong nationalizing impact, the provisions of the 1789 act also recognized the strongly local quality of the courts. District judges, for example, not only lived among the people they served, but section 34 directed that on comparable points of law federal judges had to regard holdings in state courts as the rule of decision in their courts. Furthermore, district court judges were to be recruited from local political and legal backgrounds, and these lineages made them susceptible to the immediate pressures in the friends and neighbors who appear before them and whose lives were often directly affected by their decisions. These federal district courts and the judges that presided over them were a kind of hybrid institution, organized by the federal Constitution but sensitive to state interests. The upshot was that during the course of the nineteenth century the federal courts only gradually pulled even with the state courts in prestige and power. IV. THE FEDERAL COURTS As was true at the state level, the history of the federal courts from 1790 to 1920 shows consistent attempts to shape the courts’ structure and jurisdiction in ways intended to produce a political and legal advantage for the majority in control at any particular moment. Over time, the federal courts grew more influential, more controversial, and, ironically, more widely accepted than at the time of the nation’s founding. The structure of the courts has generated political debate for more than two centuries. Throughout, the forces of localism, political influence, and administrative efficiency have tugged at one another. Circuit riding and the larger issue of the organization of the federal courts offer appropriate examples. Circuit riding was one of the administrative weaknesses but political benefits of the new federal court structure established by the 1789 Judiciary Act. The first members of the Supreme Court were assigned not only to meet in the nation’s capital (initially New York City) to hear and decide cases but also to hold courts in designated circuits. The practice, however, imposed often severe physical hardships on the justices, who faced the daunting task of traveling over poor roads and hazardous rivers. In 1793 the Federalist Congress bowed to pressure from the justices and made a minor change in the system by providing that only one justice rather than three had to serve in a circuit. More fundamental change took place in 1801, as the Federalist Party Cambridge Histories Online © Cambridge University Press, 2008 124 Kermit L. Hall was going out of office. Congress in the Judiciary Act of that year abolished circuit riding altogether and created in its place an expanded circuit court system to be staffed by its own appointed judges. The change had the immediate political benefit of granting John Adams’ outgoing Federalist administration the opportunity to appoint a host of politically loyal judges. A year later, however, newly elected President Thomas Jefferson and the Jeffersonian Republican majority in the Congress reintroduced a system of six circuits, to each of which one Supreme Court justice and one district court judge were assigned. The new federal circuit courts were abolished; not until 1869 were separate circuit court judgeships reestablished. The Jeffersonian Republicans were no fans of the federal courts in any case, and they took some delight in imposing circuit court riding duties on Supreme Court justices. The new circuits, which became essentially trial courts rather than courts of appeal, proved as unwieldy for the justices as they had before. The justices found circuit riding increasingly oppressive, especially in the newly expanding western regions of the country. By 1838, for example, the number of federal circuits had risen to nine. In that year the justices reported to Congress that they traveled an average of almost 3,000 miles a year, an astonishing distance given conditions of travel. Justice John McKinley traveled more than 10,000 miles in his circuit, composed of Alabama, Louisiana, Mississippi, and Arkansas. He reported that he had been unable to hold court in Little Rock because of a combination of flooding and bad roads. Until the CivilWar, the organization of the federal courts changed little. The war and the post-war period of Reconstruction, however, profoundly accelerated the push toward a stronger national government and a more powerful federal judiciary to uphold it. In 1875, the Republican-controlled Congress adopted a new judiciary act that expanded the jurisdiction of the federal courts far beyond the modest bounds established in 1789. Republicans expected the act to permit newly freed slaves to circumvent the prejudice of state courts, but in practice the law most benefited interstate businesses. The most important change was a provision granting the federal courts original jurisdiction based on the “arising under the Constitution” provision of Article III, or under national treaties, provided the matter in dispute exceeded $500. This meant that a litigant could initiate a case in a circuit court based on the assertion of any federal right. As important, a defendant who was brought into a state court could have the case removed to the ostensibly more neutral national forum of a federal court. Either party, then, could remove a case to federal court. In addition, any and all diversity suits could be removed, even when one of the parties did not live in the “forum” state (that is, they were not resident in the state where the federal court proceeding was to be held). Most important, the act Cambridge Histories Online © Cambridge University Press, 2008 The Courts, 1790–1920 125 permitted removal of all suits raising a question of federal law. Collectively, these provisions effectively encouraged the removal of suits from state to federal courts, from local to national forums of law. The Judiciary Act of 1875 became a milestone in the history of the lower federal courts’ relationship to the business community. The statute responded to surging national commerce, in particular to railroad corporations seeking relief from state courts in cases involving foreclosure, receivership, taxation, and even injuries to person and property. Not only traditional cases based on diversity jurisdiction were now before the federal courts, but all actions involving federal laws. The act meant that for the first time a generalized federal question jurisdiction had been established – a jurisdiction that, as Justice Felix Frankfurter once observed, has come to be the indispensable function of the federal courts. One of the consequences of this expanded jurisdiction was that the caseloads of the federal courts soared. For example, in 1870 the Supreme Court docket listed 670 cases. By 1880 the number had more than doubled. In 1870 federal district and circuit court dockets listed some 29,000 cases. By 1890 the number was more than 54,000. The lower federal courts grew in prestige and importance, emerging as “forums of order” in which interstate businesses could secure a hearing free from the local interests to which state courts presumably paid greater attention. That process had begun in 1842 when Justice Joseph Story’s decision in Swift v. Tyson established a federal common law of commerce. It gathered momentum after the Civil War and continued unchecked into the New Deal of the 1930s. A doubling of caseloads without an increase in the number of federal judges prompted delays not only in hearing but even more important in deciding cases before the federal courts. Although litigants were keen to turn to the federal courts, especially in matters involving the regulation of business by state and federal governments, they often encountered delays of years in having suits resolved. Growing demand and the increasing importance of the federal courts also meant rising costs. Between 1850 and 1875, the expense of operating the federal courts rose six-fold, from $500,000 to $3 million. By 1900 the figure had tripled, to $9 million. By 1920 it stood at $18 million. In 1891, at the behest of a combination of corporate entities and the newly minted American Bar Association, Congress passed a further Judiciary Act to address these organizational problems. The 1891 act established a new and badly needed layer of federal courts just below the Supreme Court: the U.S. Courts of Appeal. Two new judges were to be appointed in each of the nine federal circuits that now stretched from coast to coast. The act also provided that a Supreme Court justice might serve as a third judge in each of the new courts, but did not make the justice’s participation compulsory: Cambridge Histories Online © Cambridge University Press, 2008 126 Kermit L. Hall If required, a district court judge could take the justice’s place. The act did not do away with the existing circuit courts. Rather, the U.S. Courts of Appeal were to review appeals from both federal district and circuit courts. The lack of clarity in the relationship between the new courts of appeal and the existing circuit courts meant a degree of jurisdictional confusion. Most significantly, the 1891 act increased the Supreme Court justices’ control over their own docket. Congress provided that decisions in the new circuit courts of appeal would be final, subject in most cases only to a writ of certiorari issued by the Supreme Court. This new authority gave the justices greater ability to order their agenda based on their assessment of the significance of a particular constitutional controversy. The new Judiciary Act had the added effect of underscoring for litigants the importance of the lower federal courts, since from that point on their decisions were given an increased finality. Three additional steps taken in the first quarter of the twentieth century completed the transformation of the federal courts. First came the Judiciary Act of 1911, which finally abolished the federal circuit courts reconstituted by the 1802 repeal of the previous year’s Judiciary Act. The 1911 act transferred the circuit courts’ powers to the federal district courts. Second, congressional legislation in 1922 authorized the Chief Justice to oversee the federal courts generally and to provide for the assignment of district court judges where they were needed outside their own district. The act also created the Judicial Conference of the United States, composed initially of senior federal judges and expanded subsequently to include all federal judges. The mission of the conferences was to provide regular surveys of the business in the various federal courts with an eye to transferring judges between districts and circuits as caseloads demanded. The third and most far-reaching step was the Judiciary Act of 1925, popularly known as the Judges’ Bill. The outcome in good part of tireless lobbying by Chief JusticeWilliam Howard Taft, one of the leading figures in court reform during the twentieth century, the 1925 Judiciary Act clarified the jurisdiction of the federal courts and formalized their three-tier structure: district trial courts, courts of appeal, and the Supreme Court. The act established the federal district courts as the preeminent federal trial courts equipped with extensive original jurisdiction. The courts of appeal were identified as the final resting place in federal appellate jurisdiction, for the measure further broadened the Supreme Court justices’ discretion in exercising review of lower court decisions under the writ of certiorari, which necessarily further narrowed access by litigants as a matter of right. As in previous instances of federal judicial reform, the 1925 act responded to corporations interested in a uniform administration of justice and to bar groups bent on improving the efficiency of federal (but not state) courts. Cambridge Histories Online © Cambridge University Press, 2008 The Courts, 1790–1920 127 One of the critical roles filled by the district courts was the supervision of bankruptcy. Article I, section 8, of the Constitution authorized Congress to establish “uniform Laws on the subject of Bankruptcies throughout the United States.” In 1841 Congress enacted its first attempt at comprehensive bankruptcy legislation, setting out voluntary procedures for individuals and largely ending imprisonment except in cases of fraud. Opponents considered the act too protective of debtors, and it was repealed the following year. A similar act was passed in 1867 and remained in effect for the next two decades before it too was repealed. Finally, in 1898, Congress agreed on a comprehensive bankruptcy statute setting out a body of law that would last for almost a century. The act designated the U.S. district courts to serve as courts of bankruptcy. It also established the position of referee, appointed by district judges, to oversee the administration of bankruptcy cases and to exercise limited judicial responsibilities under the guidance of the district court. During the nineteenth century Congress also created other specialized tribunals to deal with matters falling outside the jurisdictional specifications of Article III. Among these tribunals, territorial courts were of particular importance. Territorial courts were temporary federal tribunals established by Congress to extend federal justice into areas that had not yet achieved statehood but were possessions (territories) of the United States. Territorial courts combined the roles of both district and circuit courts. Their judges, for the most part, had limited terms of office and were appointed by the president with the advice and consent of the Senate. Unlike Article III judges, territorial court judges could be removed for misfeasance without impeachment. In 1900 there were six territorial courts. These courts were implicated in a wide range of non-commercial issues. For example, in 1874, Congress passed the Poland Act in an effort to stem the practice of polygamy in Utah by bringing the weight of the federal government to bear. That law assigned jurisdiction of polygamy trials to federal territorial courts there and further provided for polygamy convictions to be appealable to the U.S. Supreme Court. In 1878 the Supreme Court of the United States, in Reynolds v. United States, sustained a Utah territorial court’s decisions upholding the conviction of Brigham Young’s private secretary, George Reynolds, and declaring polygamy unconstitutional. In 1855 Congress created another special non-Article III court, the Court of Claims. Like the judges of the federal courts of general jurisdiction – the Article III courts – the three judges of the Court of Claims were nominated by the president, confirmed by the Senate, and served with life tenure during good behavior. The Court had jurisdiction to hear and determine all monetary claims based on a congressional statute, an executive branch regulation, or a contract with the U.S. government. Cambridge Histories Online © Cambridge University Press, 2008 128 Kermit L. Hall Prior to the court’s creation, claims against the government were submitted through petitions to Congress itself. The 1855 act relieved Congress of the workload, but preserved its traditional control over the expenditure of all public monies by requiring the new court to report on its determination of claims and prepare bills for payments to successful claimants. In 1863, the Court of Claims gained authority to issue its own decisions rather than report them to the legislature, but the revised statute still required that the Treasury Department prepare an estimate of appropriations necessary to meet determinations made by the court before any money was distributed. In 1865, this resulted in a refusal on the part of the Supreme Court to hear appeals from the Court of Claims because its decisions were subject to review by an executive department. Within a year, Congress repealed the provision for review by the Treasury and specifically provided for appeals to the Supreme Court. Twenty years later (1887) Congress expanded the jurisdiction of the Court of Claims by making it the principal forum for all claims against the federal government. It is worth noting that until 1946 this court provided the only legal channel available for Native American tribes contesting violations of treaties with the United States. V. THE U.S. SUPREME COURT Since the Founding Era, the U.S. Supreme Court has been the single institution with national authority to develop a uniform national law. But although it sat atop the federal judicial pyramid in the nineteenth century, it only gradually earned the power to say conclusively what the Constitution meant. In its earliest years, indeed, the Supreme Court enjoyed little of the stature it would later accumulate. Among the first justices appointed by President George Washington, one declined to serve in order to take a more prestigious position as state supreme court judge; another, though accepting the position, failed to appear for a single session of the Court. The first Chief Justice, John Jay, pursued diplomatic interests as aggressively as he did his duties on the bench. Eventually he resigned altogether to become governor of New York. Delegates to the Philadelphia convention had agreed on the necessity of establishing a Supreme Court, but they had reached no consensus on its duties. Led by James Wilson, they had debated at length the creation of a Council of Revision, consisting of the president and a number of federal judges ( James Madison’s Virginia plan) or cabinet officers (Charles Pinckney’s proposal) to review federal (and perhaps state) legislation before it became law. That idea eventually gave way to the Supreme Court, the full scope of whose powers the delegates never defined fully. The president was given authority to appoint the justices, with the advice and consent Cambridge Histories Online © Cambridge University Press, 2008 The Courts, 1790–1920 129 of the Senate, and the members of the Court were to serve during good behavior, subject, like other Article III judges, to removal by impeachment of a majority in the House of Representatives and conviction by a vote of two-thirds of the members of the Senate. Of the 110 justices who have served on the high court to date, only one, Samuel Chase in 1804, has ever been impeached. Chase escaped conviction the following year. Over the course of the nineteenth century the authorized size of the Court varied from six to ten, changing – in response both to the expansion of the federal circuit system and to political pressures – on no less than six occasions before 1869, when the present number of nine was established. Every justice appointed to the high court during these years (and indeed through 1967) was a white male. The Supreme Court’s original jurisdiction, as outlined in Article III, was modest. It was further limited early in the Court’s career by the famous case of Marbury v. Madison (1803), in the course of which the Court itself decided that jurisdiction to issue writs of mandamus directed to other branches of government, as provided in the 1789 Judiciary Act, was unconstitutional. Cases heard under original jurisdiction, however, comprise only a tiny fraction of the Court’s business, slightly more than 150 cases in the past two centuries. That jurisdiction extended only to “all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party.” The Court, further, has never accepted that it has no discretion to refuse such cases; instead, it has declined to hear cases in its original jurisdiction unless there is compelling reason to do so. Through 1920, the cases that it did accept involved disputes over state boundary lines and water rights between two or more states. By far the most important jurisdiction granted the Court was appellate. During the nineteenth century the justices steadily expanded that jurisdiction and by 1925, as we have seen, they had also gained significant control over their docket. Part of their motivation in doing so reflected the growing belief, as Tocqueville noted, that political matters were, for purposes of political stability, better managed through legal and judicial processes than by political branches alone. To an important extent, then, the power of the Supreme Court developed because Congress was willing for the sake of political expediency to leave difficult matters of public policy, such as the question of whether slavery could exist in the territories, to be shaped by the Court through law rather than politics. But the expansion of the Court’s appellate jurisdiction was also prompted by Congress’s belief, usually driven by demands from lawyers and the business community, that it would contribute to enhanced efficiency in the Court’s operations and enhanced uniformity in federal law across the circuits and throughout the states. Cambridge Histories Online © Cambridge University Press, 2008 130 Kermit L. Hall Originally, cases were appealed most frequently to the Court based on a claim that an error had been committed in a court below. The justices, under this system, had little discretion over their docket. Thus, as the caseload of the federal courts grew, so too did the numbers of appeals. During its first decade, the Court heard fewer than 100 cases. By the mid-1880s the high court had more than 25,000 cases docketed, and it decided as many as 300 in a single year. Congress, however, has consistently given the high court greater discretion over its docket, with clear results. As it became more difficult for a case to reach the Supreme Court, the decisions of the justices became correspondingly more important, with public attention increasingly focused on them. The history of the high court up to 1920 was the history of vital leadership. The justices played a decisive although often controversial role in public affairs, expanding their influence often while disavowing that they either wanted or should have such influence. For example, in addressing a directive from Congress to seat federal judges as pension claims commissioners, Chief Justice John Jay stated in Hayburn’s Case (1793) that Congress could only assign judges to judicial and not administrative duties. The same year, Jay refused President George Washington’s request for an advisory interpretation of the 1773 Franco-American treaty. By limiting the Court to actual cases and controversies, the early justices assured themselves that when they spoke they did so in ways that would have direct rather than imagined consequences, while also avoiding overt political and policy involvements. Chief Justice John Marshall (1803–35) built on this early foundation by establishing the authority of the Court to interpret conclusively the meaning of the Constitution. He did so by confirming the Court’s capacity to exercise judicial review – first for federal legislation in Marbury v. Madison (1803), in which the Court declared a portion of the Judiciary Act of 1789 unconstitutional; later for state legislation in such cases as McCulloch v. Maryland (1819), in which the Court voided a Maryland law imposing a tax on the Second Bank of the United States. The cost of this heightened judicial authority over constitutional interpretation was inevitably the judiciary’s greater involvement in the political system. Marshall’s successors expanded the scope of judicial review and the prestige of the Court at the same time that they refused to adjudicate so-called political questions. In Luther v. Borden (1849), Chief Justice Roger B. Taney held that the question of which of two competing governments in Rhode Island was legitimate was entirely “political in nature.” Therefore, Taney concluded, the political branches of the federal government, not the courts, could best determine whether Rhode Island or any other state had met the mandate of the Guarantee Clause of Article IV that each state have a Cambridge Histories Online © Cambridge University Press, 2008 The Courts, 1790–1920 131 republican form of government. The judiciary, Taney observed, had no role to play; its business was legal, not political. Taney would himself succumb to the seductive influences of judicial power and in so doing provide a stark reminder of the costs to the high court of blurring the distinction between what was legal and what was political, between interpreting the law and making the law. In Dred Scott v. Sandford (1857), Taney spoke for a majority of the Court in attempting to settle the politically explosive issue of slavery in the territories by declaring that persons of African descent were not citizens of the United States and that they had no rights that white men were bound to respect. For good measure the Chief Justice made sure that incoming President James Buchanan, a supporter of slavery in the territories, knew of the Court’s decision so that he could include an oblique reference to it in his inaugural address. Taney’s opinion stirred outrage among free-state Republicans on the eve of the CivilWar and sharply divided the public over how much power the justices should exercise. Similar outcries came when, in Pollock v. Farmers Loan and Trust Company (1895), a bare majority of the Court declared the federal income tax unconstitutional, a position that was not reversed until the ratification of the Sixteenth Amendment in 1913. A year later and with only one dissenting voice, Plessey v. Ferguson (1896) sustained segregation of the races based on the principle that separate but equal facilities met the requirements of the Equal Protection Clause of the Fourteenth Amendment. The high court generally supported the regulatory efforts of both state and federal governments, but the justices learned that they too could employ substantive due process to block legislative action when it seemed appropriate to do so. In Lochner v. New York (1905), for example, a sharply divided court struck down a New York state law that prohibited bakers from working an excessive number of hours each week. The majority said that laborers should be free to strike whatever deal they could with an employer; Justice Oliver Wendell Holmes, Jr., in dissent insisted that the majority was merely reading an economic theory that favored business into the Constitution. Three years later, in Muller v. Oregon, the same court entirely ignored its Lochner precedent and decided to shine a paternal eye on women. A unanimous court held that the state of Oregon had power to regulate the conditions of labor of women because women were both emotionally and physically inferior to men. Progressive reformers argued that the Court needed to change and among the more aggressive suggestions was doing away with tenure during good behavior. By 1920, both by design and circumstance, the purportedly apolitical Supreme Court had emerged as more than a court but less than a fullblown political institution. It was, in that regard, a metaphor for the entire American system of courts. What its history has repeatedly shown is a court Cambridge Histories Online © Cambridge University Press, 2008 132 Kermit L. Hall that paradoxically functions of the world of politics without being directly in that world. CONCLUSION: THE COURTS AND NINETEENTH-CENTURY CHANGE Common law courts typically operate after the fact. They tend to respond to rather than anticipate change. The American court system between 1790 and 1920 exuded just such qualities. Litigants had to bring cases; lawyers representing them had to present arguments that squared precedent with new circumstances. But if continuity was a major chord, change and adaptation were certainly also present. Slavery, segregation, industrialization, massive influxes of foreign-born migrants, and the development of new technologies meant that courts could not simply do always as they had previously done. Nor did judges simply mirror the economic and social changes of the times through which they lived; they also attempted to shape the effects of change in allocating the costs, risks, and benefits of economic development while protecting individual property rights. In the process, they acquired new authority. By 1920 the courts exercised judicial review extensively, using that power to adjust the consequences of industrialization, sometimes by setting aside legislation and at other times by allowing it to stand. Even when they did not strike down a law, the simple fact that they were capable of exercising such a power made their capacity to limit legislative authority as important as the actual limits they imposed. The courts became better articulated with social and economic outcomes, and their judges more professional. Courts’ efforts to respond to the new industrial order were mixed, ambivalent, and even contradictory. They persisted to an extraordinary degree, even in states with elected judiciaries, in the belief that traditional property rights required continuing judicial protection. While judges were most often deferential to legislatures, they nevertheless recognized that property rights were sacrosanct. Breaking new legislative ground in matters of the rights of workers, African Americans, immigrants, or women was hence often beyond either their imaginative grasp or indeed their will to act. As the 1920s opened, nevertheless, there was no doubt that, for all of the diversity in the American system of judicial federalism, courts as a whole had established a firmer place in the American system of governance than they enjoyed at the nation’s beginning. Cambridge Histories Online © Cambridge University Press, 2008 5 criminal justice in the united states, 1790–1920: a government of laws or men? elizabeth dale Histories of modern criminal justice are less studies of doctrine than they are examinations of the state, since it is generally assumed that the institutions of criminal justice – police, courts, and prisons – play an integral role in the process by which modern states maintain the order that advanced capitalist economies demand. But while most accounts of criminal justice in the modern West trace the way a formal, rational system of criminal justice based on the rule of law developed alongsid,e a capitalist economy and a national state, the history of criminal law in the United States follows a different track. Although the long nineteenth century, stretching from ratification of the Constitution at one end to the close ofWorldWar I at the other, was marked by the emergence of an advanced, nationwide capitalist economy, it saw the development neither of a national state nor a national system of criminal justice. Even as they position the United States outside the standard track of state development, histories of criminal law in the United States still trace its evolution along a parallel route, demonstrating that over the course of the long nineteenth century the country developed a localized state. It differed from the traditional state to the extent its scope was smaller, encompassing only the institutions of city, county, and state governments, instead of a national bureaucracy, and its operations were, as a result, on a smaller scale. But many have argued that its smaller scale was its greatest strength. Relative locality permitted a degree of popular participation unimaginable in a state based on national bureaucracies; the nineteenth-century American state encouraged popular sovereignty. The result, while not a traditional state in theWeberian sense, shared with theWeberian states an emphasis on law, criminal law in particular. Throughout the nineteenth-century United States (the slaveholding South is invariably the exception that proves the rule), the local state maintained order by channeling disputes into the state court system, which ruled according to locally understood norms, defined and applied by the people of the community. In addition to maintaining 133 Cambridge Histories Online © Cambridge University Press, 2008 134 Elizabeth Dale the discipline the national economy required, these local criminal courts offered opportunities for popular participation through service on juries, by means of private prosecutions, and by electing court judges. The breadth of participation was such that in much of the country (once again, the South was the exception) even those excluded from voting or holding office by reason of sex, race, or poverty could exercise some sovereignty through their involvement in the local courts. The resulting history has been one of American distinctiveness, a unique, indigenous version of the rise of the state. But it has also been an extremely court-centered view. If the point of reference widens beyond the formal institutions of law, to consider what happened within the criminal justice system as part of what happened in the society outside the courts, the picture that emerges is no less distinctive, but considerably less uplifting. As we will see, the wider frame of reference raises serious questions about whether there ever was a state in the United States, even at the local level, during the long nineteenth century. Local governments, North and South, never developed the authority a state requires, with the result that they were never able to exercise a monopoly on violence or implement the certainty of a rule of law that state theory requires. Far from being instruments of popular sovereignty, local courts were all too often nothing more than tools of private justice, easily supplanted by extra-legal practices, while substantive law was ignored and unenforceable. Theories of punishment were undermined all too easily by private interests driven by a desire to make a profit rather than by theories of penology. I elaborate on these contentions in what follows and, in so doing, construct an alternative history of criminal justice in the nineteenth-century United States. First, I revisit the ambiguous role that national government played in criminal law from the ratification of the Constitution to the Red Scare that came at the end of World War I. Then I turn to criminal justice at the local level. My exposition is arranged in the order of a criminal case: policing is followed by prosecution, and we end with a section on punishment. Each section canvasses local justice on a national scale, examining points of similarity and difference between the practices in the North and South; sections on formal institutions are balanced by considerations of informal practices. The picture that ultimately emerges is of a criminal justice system that rested on popular passions and pragmatic practices as much as on legal doctrine – a government of men, not laws. I. A MARKET REVOLUTION WITHOUT A NATION-STATE Shortly after theWar of 1812, the United States began to develop a national market economy. By the 1840s, that economy was mature. While the various Cambridge Histories Online © Cambridge University Press, 2008 Criminal Justice in the United States, 1790–1920 135 parts of the country participated in it differently – some through manufacture, some through the national and international sale of goods, others through the interstate sale of slaves – all had felt its effects long before the first shot was fired on Fort Sumter. So too, each experienced some impact of the economy’s industrialization in the decades following the Civil War. Yet even as the economy achieved national scale, no nation-state arose in the United States. The non-appearance of the nation-state was a consequence of repeated choices, not constitutional imperative. While the American Revolution may be read as resistance to efforts to bring the colonies into the variation on the nation-state that England was developing, and the Articles of Confederation as the codification of that extreme anti-state position, the subsequent ratification of the Constitution was a step back from an extreme anti-state position. How large that step had been was hardly a matter of consensus, as the endless antebellum debates over states’ rights demonstrated. The impact of those debates was particularly felt in the area of criminal law. Just before the start of the Market Revolution, in 1812, the Supreme Court decided United States v. Hudson and Goodwin,1 which declared that there could be no federal common law of crimes. The Court’s conclusion that nothing in the Constitution permitted the federal courts to take on a general criminal jurisdiction stood in marked contrast to the concurrent development of a federal common law of commercial transactions, which the Court formally recognized in Swift v. Tyson in 1842 and which remained good law until 1938, when it decided Erie Railroad v. Tompkins.2 Yet Hudson did not hold that the Constitution reserved the authority over criminal law for the states. Instead of framing the problem in terms of federalism, the Court’s decision turned on its conclusion that the federal courts had only limited, rather than general jurisdiction, and could only act where Congress expressly gave them power to do so. While that ruling left open the possibility that Congress could pass an omnibus federal crime act, in the absence of congressional action the federal courts were not empowered to handle criminal cases. Hudson actually resolved very little; its ambiguity was magnified by Congressional inconsistency. As early as 1789, Congress gave all federal courts the power to grant petitions of habeas corpus “for the purpose of an inquiry into the cause of a commitment.” That act did not extend federal habeas protection to state court actions, but made clear that the protections existed for those held in federal custody. The next year, in the Federal Crime Act, Congress officially created some federal crimes, involving acts 1 United States v. Hudson and Goodwin, 11 U.S. 32 (1812). 2 Swift v. Tyson, 41 U.S. 1 (1842); Erie Railroad v. Tomkins, 304 U.S. 1 (1842). Cambridge Histories Online © Cambridge University Press, 2008 136 Elizabeth Dale or offenses against the U.S. government. In 1793, it passed the first Fugitive Slave Act, making it a federal crime to interfere with the capture of slaves; at the end of the decade, Congress created more federal crimes with the passage of the four Alien and Sedition Acts of 1798. Over the next sixty years, Congress passed several other substantive criminal laws: in the 1840s it prohibited postmasters from serving as agents of lotteries and banned the importation of “indecent and obscene” prints and paintings; in 1860, it passed a law intended to protect women who immigrated from seduction on board ship. Other acts of Congress in the 1820s and 1830s outlawed lotteries and dueling in the District of Columbia and criminalized the sale of alcohol in “Indian Territory.” These laws represented only a part of the morals legislation Congress was asked to pass in the decades before the CivilWar, but other efforts typically failed not as a matter of constitutional principle, but because Southern Congressmen were increasingly hostile to any sort of legislation that might provide a precedent for national regulation of slavery. Even as regional interests effectively blocked efforts to pass federal criminal laws in the antebellum era, Congress expanded the federal role in criminal justice indirectly. A law passed in the early 1830s extended the federal habeas power, giving federal judges the authority to hear habeas corpus petitions brought by individuals imprisoned by state or federal authorities for “acts committed in pursuance of a law of the United States.” At the end of the 1830s Congress expanded federal habeas power further, with a law providing that federal judges could hear claims by state or federal prisoners who were “subjects or citizens of a foreign state.” Throughout the antebellum era, the federal government also created institutions of criminal justice. In the Judiciary Act of 1789, the first Congress created the office of U.S. Marshal and assigned one to each U.S. District Court. The marshals had the power to arrest and detain, and each was empowered to employ deputy marshals who could themselves deputize temporary deputies and summon a posse comitatus. Marshals also had the power to ask the president to call up the militia and order it to support the marshal, a power that one marshal exercised just three years later, during the Whiskey Rebellion in 1792. Toward the end of the antebellum era, violent disputes between proand anti-slavery forces led to a further increase in the marshal’s powers. In 1854, in the wake of the disturbances in the Kansas-Nebraska territories, a ruling by the Attorney General of the United States expanded the marshal’s power further by establishing that they had the authority to deputize the army as a posse. Congress created other federal law enforcement agencies in the antebellum era, most notably in 1836, when it gave the postal service the power to hire inspectors to investigate postal crimes. Federal criminal jurisdiction Cambridge Histories Online © Cambridge University Press, 2008 Criminal Justice in the United States, 1790–1920 137 expanded further during the CivilWar. Military tribunals were created, initially to hear cases involving charges of treason and sabotage, which tried civilians in a variety of ways for a variety of offenses. But as time passed the jurisdiction of the courts expanded, and they ultimately heard cases involving crimes that ran the gamut from fraud against the government to morals offenses, such as selling liquor to Union soldiers. Federal law enforcement power increased in other ways as well. In 1861, Allen Pinkerton’s detective agency, which had previously engaged in investigation for local and regional businesses (including the railroads), was hired to serve as the secret service for the Northern army. Its writ ran wide. The Pinkertons investigated businesses that defrauded the federal government, tracked and arrested those suspected of spying for the Confederacy, and also tried to monitor enemy troop strength. Two years later, in 1863, Congress established the Internal Revenue Agency and gave it the power to investigate and enforce tax laws. That same year, Congress authorized funds to pay for a private police force under the control of the Secretary of the Interior. In 1865, this force was made a permanent federal police agency – the Secret Service – under the control of the Secretary of the Treasury. From 1860 to 1877 the federal government had another “super” police force at its disposal in the shape of the U.S. Army, which performed police functions in the states of the former confederacy. In 1878, with the passage of the Posse Comitatus Act, Congress formally took the power to enforce criminal laws from the armed forces. But even after the passage of that act officially relinquished the power to the states and their National Guard units, the army was used during labor battles in the mining regions of Montana, and in 1894 in Chicago – over the objections of the state governor – during the strike by the American Railway Union against the Pullman Company. The federal role in criminal justice expanded in other ways in the period after the CivilWar. In 1873 the Comstock Act authorized postal inspectors to seize obscene materials (including information relating to contraception) sent in the mail. In 1908, the Justice Department, acting initially without Congressional approval, created an internal investigative unit, the Bureau of Investigation, which also had the power to arrest. The Narcotics section of the Internal Revenue Service was formed to enforce the federal drug regulations just beforeWorldWar I; during the war, and the subsequent Red Scare of 1919–20, those agencies, along with the Secret Service, enforced the sedition and draft laws and began the practice of collecting dossiers on suspected subversives. In the period between the Civil War and World War I, Congress passed a series of laws on criminal matters as well, deriving its authority to do so from a variety of constitutional provisions. In the Judiciary Act of 1867, it expanded the scope of the federal Habeas Corpus Act, declaring that federal courts could issue the writ in “all cases where Cambridge Histories Online © Cambridge University Press, 2008 138 Elizabeth Dale any person may be restrained of his or her liberty in violation of the constitution, or of any treatment or law of the United States.” Congress used its powers under the Thirteenth and Fourteenth Amendments to pass the Civil Rights Acts of 1866 and 1875, both of which included criminal sanctions. In 1873, Congress relied on its constitutional authority to regulate the mail when it passed the Comstock Act. Congress passed several pieces of morals legislation, including the Lottery Act of 1895, which were based on its constitutional authority to regulate commerce, as was the Sherman Antitrust Act, passed in 1890, which established a range of criminal punishments for monopolistic behavior. Twenty years later, in 1910, Congress again relied on the Commerce Clause when it passed the Mann (White Slave) Act, which made it a felony to transport a woman in interstate commerce “for the purpose of prostitution or debauchery.” In contrast, the Espionage Act of 1917 and the Sedition Act of 1918, omnibus laws criminalizing a range of activities relating to subversive activities and spying, were based on Congressional authority over the armed forces. The Volstead Act (1919), which gave the federal government the power to enforce prohibition, was passed pursuant to the Eighteenth Amendment. In 1919, the Supreme Court affirmed convictions under the Sedition Act of 1918 in Abrams v. United States and Schenck v. United States.3 But in the period between the end of the Civil War and the end of World War I, the Supreme Court’s rulings in the area of the federal role in criminal law enforcement were marked by inconsistencies and confusion. The Court upheld the Lottery Act in Champion v. Ames in 1903, and the Mann Act in Hoke v. United States a decade later.4 In yet another decision on the Mann Act, Caminetti v. United States, which was decided in 1917, the Court explicitly confirmed that Congress had the power to regulate individual morality.5 Other Court rulings on federalism left the balance of state and federal authority unclear. In the Civil Rights Cases (1882), the Court struck down parts of the Civil Rights Act of 1875 on the ground that it infringed on the police powers of the states.6 But in its decision on the Pullman strike, In re Debs (1895), the Court upheld a federal court contempt proceeding arising out of a federal injunction against the railroad boycott, and it justified the result with reference to Congressional authority to regulate the mail and interstate commerce.7 The expansive federal power the Court recognized in Debs seemed at odds with the more limited view of federal commerce clause 3 Abrams v. United States, 250 U.S. 616 (1919); Schenck v. United States, 249 U.S. 47 (1919). 4 The Lottery Cases, 188 U.S. 321 (1903); Hoke v. United States, 227 U.S. 308 (1913). 5 Caminetti v. United States, 242 U.S. 470 (1917). 6 Civil Rights Cases, 109 U.S. 3 (1882). 7 In re Debs, 158 U.S. 564 (1895). Cambridge Histories Online © Cambridge University Press, 2008 Criminal Justice in the United States, 1790–1920 139 power it articulated that same year with respect to the Sherman Antitrust Act, in United States v. E. C. Knight.8 Neither rhyme nor reason strung these rulings together, least of all police power theory. In Adair v. United States (1907) the Court declared the Erdman Act of 1898, which made it a federal offense for any employer in interstate commerce to blacklist or fire employees who joined a union, an unconstitutional infringement on state police powers.9 In that case, the Court once again offered a narrow interpretation of Congressional authority to enact criminal legislation based on the Commerce Clause. But in E. C. Knight the Court declared the states’ police powers were “essentially exclusive,” which suggested that the federal government had some jurisdiction in that area. That same year, in In re Debs, the Court implicitly rejected the theory of Hudson and Goodwin that the federal courts were courts of limited jurisdiction, holding to the contrary that while the government of the United States was a government of enumerated powers, it had full sovereignty within those enumerated powers and could, therefore, use military force, the equitable powers of the federal courts, or the process of criminal contempt to protect its sovereignty. The Court’s insistence in Debs, that its decision in no way replaced state court criminal jurisdiction, could not outweigh the importance of its ruling, since the result was to give federal courts the power to overrule the decisions of state authorities. Government by injunction, which greatly expanded the powers of the federal courts, continued through passage of the Norris-LaGuardia Act of 1932. While many of its rulings in the area of criminal law were ambiguous and contradictory, the Supreme Court consistently refused to consider the possibility that the provisions of the Bill of Rights protected defendants in state court proceedings. In Barron v. Baltimore (1833) the Court had held that the Bill of Rights did not apply against the states, thus guaranteeing that states could determine what procedural protections defendants would be granted in criminal trials.10 Invited, fifty years later in Hurtado v. California (1884), to reconsider that ruling in light of the intervening ratification of the Fourteenth Amendment, the Supreme Court once again denied that the Bill of Rights set any limits on state law enforcement officers or state court criminal trials.11 The Court reiterated that point twenty years later, in Twining v. New Jersey (1908), where it held that the right against self-incrimination set out in the Fifth Amendment did not apply 8 United States v. E. C. Knight, Co., 156 U.S. 1 (1895). 9 Adair v. United States, 208 U.S. 161 (1907). 10 Barron v. Baltimore, 32 U.S. 243 (1833). 11 Hurtado v. California, 110 U.S. 516 (1884). Cambridge Histories Online © Cambridge University Press, 2008 140 Elizabeth Dale in state court proceedings.12 Although it modified that position modestly in the 1930s, it was not until the middle of the twentieth century that the Court agreed to extend the protections of the Bill of Rights to state court criminal proceedings. The result, throughout the nineteenth century and well into the twentieth, was a national government whose ambivalent exercise of power either positively (by enacting and policing federal criminal laws) or negatively (by means of federal oversight of state court criminal processes) kept it from achieving the authority needed to establish a modern state. In the antebellum era, Tocqueville had suggested that the resulting localism created a distinctive American state that was a particular strength; writing at the end of the nineteenth century in his dissenting opinion in Hurtado, the first Justice Harlan was not so sure. Objecting to the Supreme Court’s ruling that the Fifth Amendment did not apply to state court trials, he outlined both the benefit of the Fifth Amendment and the result of the failure to apply it to state proceedings: in “the secrecy of investigations by grand juries, the weak and the helpless – proscribed, perhaps, because of their race, or pursued by an unreasoning public clamor – have found, and will continue to find, security against official oppression, the cruelty of the mobs, the machinations of falsehood, and the malevolence of private persons who would use the machinery of the law to bring ruin upon their personal enemies.” While Harlan’s faith in the protections provided by the jury system was not entirely warranted, the history of the long nineteenth century bears out his perception that the vacuum that existed at the national level gave the United States a criminal justice system in which there was all too often neither state nor law. II. FIRST FAILURES OF THE LOCAL STATE: POLICING SOUTH AND NORTH Policing predates both capitalist economies and the modern state; law enforcement in a variety of forms existed in pre- and early modern Europe. This notwithstanding, studies of the state frequently tie the development of exclusive systems of police to the rise of the modern state. The history of policing in the United States raises several questions about that association. The sporadic efforts on the part of the national government to create police forces never established a significant police presence, and while local governments established a variety of policing agencies from 1780 to 1920, their authority was frequently checked and challenged by popular justice in a variety of forms. 12 Twining v. New Jersey, 211 U.S. 78 (1908). Cambridge Histories Online © Cambridge University Press, 2008 Criminal Justice in the United States, 1790–1920 141 During the antebellum era, ironically, the strongest police forces arose in that part of the country most often considered anti-state. The English colonists to North America had brought with them traditional forms of policing – sheriff, constable, and night watch (a volunteer peacekeeping company drawn from the citizenry) – when they crossed the Atlantic. Before the American Revolution, those popularly based institutions provided the extent of policing for most of the colonies; the exception was those colonies in which the desire to control runaways and suppress slave insurrections prompted the creation of additional forces. The colonial government of South Carolina was one of the first to establish a special slave patrol, doing so in 1693. Other slaveholding colonies followed suit over the next century. Patrollers’ powers over blacks, free and enslaved, were considerable, but not unlimited. In South Carolina, for example, patrols could go into the dwellings of blacks (and white servants), seize contraband items, and arrest slaves, free blacks, or white servants. But they could not go onto whiteowned property without the permission of the owner, and they could be, and often were, thwarted in their efforts to enforce pass laws and other restrictions on slaves by masters who refused to follow the laws. Notwithstanding the patrols’ limitations, and perhaps because of them, toward the end of the antebellum era some elite whites in South Carolina argued that the jurisdiction of slave patrols should expand to include white poachers, trespassers, and vagabonds as well.13 By that point, fear of slave insurrection had already led Charleston, South Carolina, along with other Southern cities, to create armed, semi-military police forces. Charleston’s police force, which had the power to arrest blacks and whites, was established as early as 1783; New Orleans established its own police department, modeled on Napoleon’s gendarmerie, in 1805. There were some differences between these two models. Members of the New Orleans’ force were uniformed and armed (at first with muskets, after 1809 with sabers) and served mostly at night, though some members were on reserve during the day. After 1836 the police in New Orleans moved away from that military model; its officers no longer wore uniforms or carried any weapons other than staves. By contrast, South Carolina consistently relied on the military model of policing. From 1806 on, Charleston had an appointed, uniformed guard whose members were paid a salary and armed with muskets and bayonets. Until 1821 members of this force patrolled the city streets in platoons of twenty to thirty men; in the aftermath of the abortive Denmark Vesey uprising, Charleston’s patrol stopped wearing uniforms. While some accounts indicate Charleston’s police squads continued to patrol the streets 13 Minutes of the Beech Island (S.C.) Agricultural Club, 3 December 1859, pp. 130–131. South Caroliniana Library, University of South Carolina, Columbia, South Carolina. Cambridge Histories Online © Cambridge University Press, 2008 142 Elizabeth Dale at night, at least some guardsmen began to work assigned beats. The powers of Charleston’s police expanded throughout the antebellum period: a horse guard was added in 1826 and a detective force in 1846. By 1856 the department had established a picture gallery of known criminals, as well as a classification system for recording arrests and convictions (to put this in perspective, Boston created its detective force the same year as Charleston, but New York had no detective squad until 1857 and did not organize a rogue’s gallery until the end of the nineteenth century). With more than 100 men in the department at the start of the Civil War, Charleston’s police force was by far the largest in South Carolina. But by 1860 cities across the state, from Aiken to Yorkville, had active police forces. South Carolina’s police, in turn, served as models for police forces in the major cities in Georgia, Alabama, and Virginia. Unique among antebellum Southern cities, New Orleans had several black officers on its police force from 1806 until 1830, but then had no African Americans on the force until 1867, when Reconstruction altered the balance of racial power in the city. During Reconstruction several other Southern cities, including Wilmington, North Carolina, modestly integrated their forces, and others experienced significant integration. By 1876 half the officers on Charleston’s force were black. Reconstruction’s end put a stop to that experiment, along with so many others, though there were still African American officers on the Tampa, Florida, police force in the 1880s; on theWilmington, North Carolina, force as late as 1898; and in the Tulsa, Oklahoma, police department in 1917. But the continued presence of black officers represented the remnants of the earlier pattern, rather than an established hiring practice. After its only black officer resigned, Tampa hired no black officers until 1922. Nor were the numbers of black officers ever particularly significant on police forces North or South, even when African Americans managed to obtain positions. In 1906 the police force in Atlanta had black officers, but they were confined to patrolling the black parts of the city; notwithstanding its thriving African American population, Tulsa’s police force had just two black officers in 1919. The situation was no better above the Mason-Dixon line. Chicago hired its first African American police officer in 1873, but forty years later, when blacks represented 6 percent of the city’s labor pool, they made up only 2 percent of its police force. And women, of course, fared far worse. North and South, city police departments had women serving as jail matrons before the CivilWar, but the first policewoman in the country was not appointed until 1905. While few in the South questioned the value of having squads of police to control the slave population, many opposed the creation of police forces in the North out of fear they posed too great a risk of increasing the size and Cambridge Histories Online © Cambridge University Press, 2008 Criminal Justice in the United States, 1790–1920 143 power of local governments. Police were a problem precisely because they seemed a step toward the creation of a state. Philadelphia briefly established a day watch in 1833, but had no permanent force until the 1840s; Boston had established one only a few years earlier, in 1838. New York continued to have elected constables, complemented by appointed day marshals and a large force of night watchmen, throughout the 1830s. A commission appointed by the mayor in 1836 recommended that New York create a police force modeled on Sir Robert Peel’s reforms establishing the London Metropolitan Police (1829), but its suggestion was ignored. There was a second effort to establish a police force in New York in 1844, when the state legislature recommended that the City create a “Day and Night Police” modeled on London’s system and employing 800 men. The city government refused to go that far, but the mayor did appoint a uniformed police force of 200 men. That force lasted only as long as the mayor’s term; when the new, Democratic administration took control of city administration the next year it implemented the state legislature’s recommendation and created a department of 800 men. In contrast to the semi-military organization of the Southern police forces, officers inNewYork’s newly created department, like their counterparts in Philadelphia and Boston, wore no uniforms and carried no weapons, though in New York each was given a special badge. It was only toward the end of the antebellum era that these Northern departments began to embrace a more militaristic model. In New York, members of the force were given uniforms in 1855 and officially allowed to carry guns in 1857; Philadelphia’s officers had no uniforms until 1860, and Chicago’s officers had to wait until 1863 for theirs. For the same reason, these cities also resisted creating centralized commands for their departments before 1860. Just as a desire to suppress slave uprisings drove Southern cities to establish police departments, fear of riots and mobs finally led to their creation in the North. Boston’s police department was created a few years after a riot that destroyed a Catholic girls’ school; New York’s efforts to establish a department began in earnest after three violent riots in 1843. Chicago established a police force after the Lager Beer Riot in 1855. While the creation of the police forces in the North had been limited by the fear that they might become a standing army, once created the forces in New York, Boston, Philadelphia, Chicago, and other major cities were untrained and subject to few legal restrictions. As a result, their successes were predictably limited, and their activities created disorder as often as they restrained it. In theory officers had authority to arrest anyone, but police typically were deployed against the lower classes and immigrant populations, their roles limited to breaking up fights and suppressing violence (especially riots). They were often unable to perform either role; throughout the antebellum Cambridge Histories Online © Cambridge University Press, 2008 144 Elizabeth Dale period, city governments North and South often had to call in the militia, and several cities went further, forced to turn to private “volunteer militias” to supplement their police forces. Even that was not always enough. In antebellum Chicago and other cities property owners often hired private detective agencies to locate stolen property, and businesses hired private firms, such as the privately run Merchant Police, to patrol their premises. Sometimes, popular frustration with the failings of the police went further, prompting revolts against local government. In 1851, the Vigilance Committee took over San Francisco’s government in response to its failures to maintain order. A few years later, in 1858, a Vigilance Committee protesting a similar problem in New Orleans seized control of both the state arsenal in that city and police headquarters. Unable to subdue the group, the mayor of the city declared its members a special police force. Several violent altercations followed, causing the mayor to be impeached, but the Committee disbanded when its party lost the next election. For others, self-help was a more straightforward, personal matter. Throughout the antebellum period men in New Orleans, New York, Philadelphia, and Chicago, as well as other cities, carried weapons for their own protection. Among elites, the weapon of choice was a sword cane until the creation of the revolver made that a more attractive option; men in the working class relied on knives and bare fists. Efforts to strengthen the authority of the police and create a greater distance between governed and government increased after the Civil War. Local governments, particularly in the North, began to professionalize their departments in response to complaints that officers took bribes, displayed political or ethnic favoritism, and turned a blind eye to crime. Those complaints led most Northern cities to complete the move toward the military model of policing that had been favored in Southern cities before the Civil War, reorganizing their police departments under a centralized chain of command. Those developments did little to alter the basic perception that the police were corrupt and incapable of preventing crime or apprehending criminals, nor did they put an end to political influence on the police. Although centralization was intended to remove the police from political control that aim was undermined by the politicization of appointments to the central command. Other reform attempts, begun in New Orleans in the 1850s, to make merit the keystone of hiring and promotion decisions in police departments, were consistently blocked. It was not until the very end of the nineteenth century that most cities made police work part of the civil service and provided their officers with training. In 1888, Cincinnati created a police academy; New York implemented some informal training processes by the 1890s, but delayed creation of its own academy until 1909. Chicago established its training academy a year later. Cambridge Histories Online © Cambridge University Press, 2008 Criminal Justice in the United States, 1790–1920 145 Under such circumstances, as one might expect, popular forces continued to intersect with public policing, with frequently violent results. During South Carolina’s Ellenton Riots in 1876, the local sheriff called in an allwhite posse to help capture blacks suspected of aiding a wanted rapist. When the posse turned mob, it set off a weeklong race war. In 1888, a mob in Forest, Illinois, helped capture a young black man suspected of killing a white girl in Chicago and nearly lynched him in the process. Some suspects were not so lucky. In 1880, a mob in Northampton County, Pennsylvania, seized Edward Snyder, suspected of killing Jacob and Alice Geogle, and lynched him notwithstanding the protests of the local law enforcement officers. Police also were accused of doing nothing during moments of heightened tension. During the race riots in Chicago in 1919 and Tulsa in 1921, for example, the police were accused of standing by as white mobs attacked blacks and damaged their property. During the labor strikes of the era, some charged the police with attacks on striking workers and permitting strikers to be attacked, while others accused the police of aiding and abetting the striking workers. III. THE ONGOING ROLE OF EXTRA-LEGAL JUSTICE As all this suggests, well into the twentieth century different communities in the United States continued to use a variety of informal means to enforce norms. Those extra-legal processes, in turn, sometimes reinforced, but as often interfered with the formal processes of criminal justice, preventing local governments and police forces from claiming exclusive control over discipline or establishing a monopoly on violence. Two forms of extra-legal justice, honor culture and lynch mobs, provide the bookends for the period. At the start of the antebellum era, honor culture’s emphasis on personal response to assaults on reputation sanctioned the resort to violent means – duels, canings, or fights with fists and knives – by those who wished to punish everything from adultery to slander. But while reprisal was the preferred method of defending honor, violence, lethal or otherwise, was not the only means available. Notwithstanding that some studies assert that going to law was inconsistent with the defense of honor, Benjamin Perry, a lawyer who practiced in antebellum South Carolina, brought several lawsuits that he characterized as actions by young women brought in defense of their honor. Honor culture impinged on formal law in other ways as well. While some affairs of honor, including the duel in which Perry shot and killed his opponent, never resulted in prosecution, participants in other rencontres were arrested and tried. In many of these instances, the code of honor trumped, or at the very least modulated, the rule of law. In South Carolina in 1845, Charles Price shot Benjamin Jones because Cambridge Histories Online © Cambridge University Press, 2008 146 Elizabeth Dale Jones had called his (Price’s) daughter a liar. A grand jury promptly indicted Price for murder, but at trial the petit jury as quickly rejected that charge, determining that Price was guilty of nothing more than manslaughter. An equally sympathetic judge then sentenced Price to just a year in jail. Most histories associate honor with the South, but the culture of honor extended above the Mason-Dixon Line. In the 1840s and 1850s, merchants in St. Louis who had migrated to that city from New England held duels on a sandbar in the Mississippi known as “Bloody Island.” In Philadelphia, young men of substance crept away to Delaware to kill one another in duels until well into the 1840s. Throughout the antebellum period, men from the middling and lower classes in cities like Philadelphia, New York, and Chicago defended their honor with knives and fist, and juries in the North were as willing as those in the South to excuse killings committed in the name of honor, either by acquitting outright or reducing the charges against the defendants. Young men North and South continued to fight and sometimes kill one another in the name of honor after the Civil War, and juries still treated them leniently when they were brought to trial. In 1887, a jury in Chicago acquitted Eugene Doherty, who was accused of killing Nicholas Jones in a fight outside a bar. In the course of reaching its verdict, the jury ignored the evidence that Doherty had been arrested at the scene minutes after the shooting, revolver in hand. Even so, the close of the Civil War marked the beginning of the end of honor’s influence as a form of extra-legal justice. But as honor suffered eclipse, other forms of extra-legal justice prevailed. From the evangelical backcountry of the antebellum South, to the predominantly Catholic mill towns of late nineteenth-century Pennsylvania, churches policed offenses committed by their congregants, judging and punishing a variety of wrongs including intemperance, adultery, and gambling. These punishments were seldom violent; shaming and shunning were the favored methods of reprimanding wrongdoers in most churches, although practice and participants varied from congregation to congregation. In some, women could be judged but were never permitted any sort of adjudicatory role; in others women judged and could be judged. In another informal process of investigation, adjudication, and punishment relating to morals offenses, women exercised greater authority. Sometimes their investigations of wrongdoing involved other women; other times women entered and enforced moral judgments against men. In either case, shame and social ostracism were the preferred means of punishing wrongdoers. These everyday courts of public opinion crossed class and regional bounds, functioning in communities of workingclass women in antebellum New York and among elite white women in antebellum South Carolina. Similar processes were at work on shop floors among male laborers as well. Cambridge Histories Online © Cambridge University Press, 2008 Criminal Justice in the United States, 1790–1920 147 Men, aided by some women, practiced another form of community judgment that had a far more violent element. In antebellum New York, several of the riots that proved so difficult to control arose when mobs of workingclass men attempted to police their own communities by driving out brothels and other establishments they considered immoral. Mob action was not confined to the working class. The San Francisco vigilantes of the 1850s and the New Orleans committee of roughly the same era were middle-class men who claimed they were enforcing community norms when they took law into their own hands. Once again, these informal practices continued well after the Civil War. In Chicago in the 1870s a mob in one neighborhood burned down a factory that they felt violated city laws and harmed their community; in 1887 women from the town of Ellsworth, Illinois, raided a local saloon. During the 1880s, mobs of men executed rough justice from South Carolina and Tennessee in the South to Indiana and Wisconsin in the North. Sometimes they formed to deal with a particular problem. In 1886, for example a mob in Irving Park, a Chicago neighborhood, drove a man suspected of taking indecent liberties with children out of the city. Other times, they policed general problems; in the 1880s mobs formed and beat men who whipped or abused their wives in both Indiana and South Carolina. Informal vigilante efforts had organized counterparts in the Law and Order Leagues and other citizens associations that formed in the 1870s and 1880s. In Chicago in the 1880s, members of the Citizens Association monitored theaters for immoral shows and enforced liquor law violations. Officially, members of the organization tried to work through formal channels, relying on police officers to make arrests, but they were perfectly willing to make citizens arrests when they felt law enforcement officers were unwilling or unavailable. In 1901 in New York City, Judge William Travers Jerome led members of the City Vigilance League on raids of brothels and gambling dens, arguing that citizens had to enforce the laws because the police had failed to act. New York’s experience with vigilante justice suggests how often the efforts of law-and-order groups targeted vulnerable groups. From 1870 throughWorldWar I, New York’s Anti-Saloon League shut down workingclass bars; in roughly that same period the Society for the Suppression of Vice worked to suppress stage shows (and literature) its members deemed obscene, while the Committee of Fourteen, another private anti-vice society, focused on cabarets and saloons, venues particularly noted for racial mixing or homosexual clientele. Some law-and-order groups tried to advocate for the excluded; a Committee of Public Safety, formed in New Orleans in 1881, monitored the arrests made by the police department, complaining about police brutality, Cambridge Histories Online © Cambridge University Press, 2008 148 Elizabeth Dale particularly against blacks. Other times, minority groups took the law into their own hands as a form of self-help. In the aftermath of Chicago’s race riot of 1919, blacks claimed that they had acted extra-legally to protect their lives and property because they could not trust the police to act. When the dust settled, it was clear that, throughout the riot, Chicago’s police had been deployed to protect white property and white lives; not until the National Guard was brought in, at the tail end of the riot, had blacks received any official protection. Perceived failures of law in late nineteenth-century Chicago also led small manufacturing concerns and labor organizations to establish their own informal rules, creating systems by which they policed one another. Violations discovered by their informal courts were punished through strikes or violence. Both the law-and-order leagues and their less formal counterparts justified their actions on the ground that laws were being ignored, which easily became the argument that the legal system was itself unjust, or lawless. That, of course, became the argument that Ben Tillman and other white supremacists in the South used to justify the creation of lynch mobs. In part because other forms of extra-legal justice conditioned both governed and government to mob violence, from the 1880s to the 1930s little was done to stop lynching. In that period, lynch mobs killed roughly 3,700 people, male and female, 80 percent of them black. As was the case with other forms of extra-legal justice, no region had a monopoly on this violence. While most of the reported lynchings occurred in the South, in the last half of the nineteenth century mobs killed men and women in a variety of Northern states, among themWisconsin, Pennsylvania, and Illinois. IV. THE POPULAR ROLE IN FELONY COURTS AND EFFORTS TO CHECK ITS INFLUENCE In the first half of the nineteenth century, the forces of popular justice spilled out of the streets and into the felony courts, brought in most often by the juries that played roles at one stage of the proceedings or another. Throughout the antebellum era, many counties North and South followed English practice and relied on elected coroners to investigate unexpected deaths, with juries composed of “bystanders” selected from the neighborhood of the death. Toward the end of the century, these juries and the coroners who called them came under attack for their lack of professionalism. In 1877, Massachusetts replaced coroners with the medical examiner. But while newspapers in other parts of the country denounced coroners and their juries, pressing for their abolition throughout the 1880s, most jurisdictions did not follow Massachusetts’ lead. New York had a coroner Cambridge Histories Online © Cambridge University Press, 2008 Criminal Justice in the United States, 1790–1920 149 until 1915, and some counties in Wisconsin continued to rely on coroners untilWorldWar II. Coroner’s juries represented the first point of popular involvement in the legal system, and their role could be significant. They not only deliberated over the causes of unexpected death but often offered a preliminary determination of whether any crime had occurred. Coroner’s juries could, and sometimes did, prompt a sheriff to initiate actions with a determination that a suspicious death needed to be the subject of prosecution, just as they could, and often did, forestall legal actions with a finding that nothing criminal had occurred. On more than one occasion their determinations were suspect; in 1907 a coroner’s jury in Philadelphia found that a man found drowned in the, Delaware River had committed suicide, notwithstanding the fact that he had been dragged from the water with his hands bound behind his back. Because coroner’s juries had to be composed of people from the scene of the crime, the juries were a popular institution, at least to the extent that they involved all classes of white men. (Slaves, blacks, and women, along with other marginalized groups, were rarely if ever members of coroner’s juries, though they could provide testimony at an inquest.) In contrast, grand juries usually were composed of a community’s elite. Notwithstanding that demographic difference, members of the grand jury were as willing as coroner’s jurors to apply their own standards in determining what crimes should be prosecuted. Grand jury records from Philadelphia in 1839–59 show that the jury indicted in less than half the murder cases brought before it. The rate of indictments was higher in antebellum South Carolina, but even there grand juries entered indictments in only 63 percent of the cases they heard. Their unreliable nature brought grand juries under attack toward the end of the century; in the 1870s California began to substitute informations for indictments. No grand jury was ever called in cases that proceeded under an information. Instead there was a preliminary hearing before a magistrate, who bound a defendant over for trial if he felt there was evidence enough to proceed. This attack on jury power was relatively successful; by the end of the nineteenth century the federal government and many of the other states had borrowed the system from California and used it to sidestep their grand juries. Even as the use of informations checked one source of popular influence on the prosecution of felony cases, the members of petit juries continued to play an important role in criminal trials. Andrew Hamilton’s argument for the acquittal of John Peter Zenger, which may have been jury nullification’s most famous moment, occurred in the eighteenth century, but the history of the practice extended into the twentieth. Such exercises of popular power Cambridge Histories Online © Cambridge University Press, 2008 150 Elizabeth Dale were not without challenge. Shortly after the American Revolution, many state court systems tried to limit the jury’s power, declaring that jurors were limited to finding facts while judges had the sole power to determine the laws, but these declarations did not have much impact. Juries in the antebellum South were notorious for deciding cases in accord with local values rather than the rule of law, with the result that in states like South Carolina conviction rates for many crimes, including murder, were less than 50 percent. But once again the phenomenon was not limited to the South. In antebellum New York City, less than a third of all men (defendants in murder cases were almost exclusively male) brought to trial for murder were convicted. In Philadelphia, in 1839–46, the grand jury indicted sixty-eight people for murder, but only 37 percent of those indicted were convicted once they were brought to trial. Although the numbers for that city changed after the Civil War – Philadelphia had a conviction rate for murder of 63 percent in the period 1895–1901 – the figures reflect the influence of plea agreements, rather than a shift in juror practice. Of the people convicted of murder in that city in 1895–1901, only thirty-four suffered that fate as a result of a jury verdict, while fifty-eight pleaded guilty. And in other parts of the country, conviction rates remained low after the Civil War. In late nineteenth-century Chicago the conviction rate for people brought to trial for murder was roughly 40 percent. A number of reforms over the course of the nineteenth century sought to deal with the petit jury’s power at trial; some were designed to expand that power, others to restrict its exercise. One early change, which took effect in the 1820s, increased the ability of jurors to convict by providing that jurors only need find that proof of guilt was beyond a reasonable doubt. While this standardized the burden of proof at a standard more stringent than that applied in civil cases, the standard was lower than the near certainty test that defense attorneys called for in the early national period. Another significant shift in jurors’ powers came in the antebellum era, when many states, including New York, Tennessee, and Illinois, passed laws that gave juries the power to sentence as well as determine guilt. Other, later reforms had an impact on the evidence that petit juries could hear. Before the Civil War, state courts typically followed English law, limiting defendants’ ability to testify. Many restricted the defendants’ right to testify under oath; some went further. As late as 1849, criminal defendants in South Carolina could make the final argument to the jury only if they presented no evidence on their own behalf. In 1867, Maine gave criminal defendants the right to testify under oath, and this innovation was quickly adopted in other states. Another change, made at roughly the same time, imposed restrictions on judges’ ability to comment on the evidence. Cambridge Histories Online © Cambridge University Press, 2008 Criminal Justice in the United States, 1790–1920 151 A statute in Massachusetts barred judicial commentary in 1860; Mississippi limited judges to stating the law even earlier, in 1857. In Chicago, one consistent influence on the low conviction rate was an Illinois statute that provided that jurors could substitute their own view of the law for the instructions given to them by the judge. The practice was so well established that jurors frequently received an instruction to this effect, most famously at the trial after the Haymarket Bombing in 1887. Jury nullification remained good law in Illinois even after the U.S. Supreme Court denounced the practice in Sparf and Hansen v. United States (1895).14 In fact, the Illinois Supreme Court did not itself outlaw nullification until 1931.15 But while Illinois and Maryland (where a provision in the state constitution permitted jurors to nullify16) were unusual in the degree to which they formally recognized that juries had the right to nullify, legal commentators from Arthur Train to Roscoe Pound complained that juries exercised that power informally throughWorldWar I. Yet the evidence of the increased rate of plea bargains in late nineteenthcentury Philadelphia reveals one force that checked the petit jury’s power in felony courts. And that check on jury power was significant. In 1900 three out of four felony convictions in the New York county criminal courts resulted from plea agreements.Within a few decades the numbers in other cities were at least as dramatic. A study in 1928 determined that in 1920s Chicago, 85 percent of all felony convictions resulted from a plea, as did 78 percent of felony convictions in Detroit, 76 percent in Denver, 90 percent in Minneapolis, 81 percent in Los Angeles, 84 percent in St Louis, and 74 percent in Pittsburgh.17 That shift had taken most of the nineteenth century to occur; Massachusetts courts had begun to take pleas in cases of regulatory crime (liquor offenses, for example) in 1808, and in 1845 a committee appointed by the Massachusetts House of Representatives endorsed plea agreements as a reasonable exercise of prosecutorial discretion. But plea bargaining was not quickly extended to cases involving other felonies. The first plea agreement in a case involving murder was not entered until 1848, and throughout the 1850s only 17 percent of all murder cases in Massachusetts were pleaded out. The trend changed in the decades after the Civil War; at the end of the 1890s 61 percent of all murder cases in Massachusetts were resolved with pleas. While the effect of the turn to plea agreements was to limit the power of the criminal court jury, the rise of plea bargaining was a result of indirect popular influence on 14156 U.S. 51 (1895). 15 Illinois v. Bruner 343 Ill. 146 (1931). 16 Maryland Constitution, article 10, section 5. 17 Raymond Moley, “The Vanishing Jury,” Southern California Law Review 2 (1928), 97. Cambridge Histories Online © Cambridge University Press, 2008 152 Elizabeth Dale courts. In Massachusetts, which had an appointed judiciary throughout the century, judges resisted plea bargaining until caseload pressure forced them to do accept the practice at the end of the century. In contrast, in states where judges were elected, like Georgia (where judges controlled sentencing) and Indiana (where jurors sentenced), plea bargaining took hold in the antebellum era. In those states judges apparently used plea bargaining to control their caseloads and demonstrate their competence to the electorate. Other reforms of the century were intended to increase the authority of the government in felony trials. To that end, by 1820 most states had created the office of public prosecutor, and in the antebellum era many states tried to use those prosecutors to consolidate their authority over criminal prosecutions by eliminating the old practice of private prosecution of crimes. But those efforts were not entirely successful. Governments did succeed in eliminating prosecutions initiated and often presented by private people, rather than by government lawyers, a practice that had allowed private people to use the courts for personal revenge. But they were unable, or unwilling, to bring to an end a second type of private prosecution, in which private attorneys were hired to assist state-supported prosecutors in presenting the case; that practice continued well into the twentieth century, subverting the claim that criminal prosecutions were undertaken on behalf of the state rather than for private revenge. The selective nature of this assault on private prosecution had a decided class aspect. While the first approach opened the courthouse door to the poor, letting them bring claims (even, of course, frivolous ones) against others at minimal expense, the second gave special advantages to the rich, who could hire the best lawyers to assist the state’s attorneys. The inequalities of criminal justice were more marked on the other side of the case.Wealthy defendants throughout the century went to trial with the best representation money could buy, but in most states criminal defendants charged with felonies were sorely pressed to get representation at all. As early as 1780, Massachusetts courts required that attorneys be appointed for indigent defendants charged with capital crimes, and by the end of the nineteenth century, defendants in New York and California had a right to free counsel in all felony cases. Toward the end of the century, courts in several jurisdictions, such as Chicago, asked attorneys to volunteer to represent indigents in capital cases, but in the same period courts in Florida refused to recognize that criminal defendants had a right to counsel. Concerted efforts to provide attorneys for indigent defendants did not begin until right beforeWorldWar I. In 1914, Los Angeles became the first city in the country to create an office of public defenders. New York created a voluntary defenders organization three years later, but many jurisdictions Cambridge Histories Online © Cambridge University Press, 2008 Criminal Justice in the United States, 1790–1920 153 waited until the late 1920s and early 1930s to provide for defendants who could not afford representation. The rule of law often had little impact on felony trials, and appellate courts did little to remedy that problem. By 1840 most states permitted appeals from criminal convictions, although Louisiana did not do so until 1843. But while the right existed, the privilege was exercised rarely because few defendants could afford it. InWisconsin, the state Supreme Court heard 27,000 appeals in the period from 1839 to 1959, but of those only 1,400 were appeals from criminal cases, and in other states appeals remained a relatively unimportant part of the criminal process through World War I. More popular, in both senses of the term, was the pardon, but for most of the period that was a decision left to the sole discretion of the elected governor, which meant it was a process tempered by political reality far more than by mercy or law. V. GOVERNED WITHOUT GOVERNMENT, CRIMINAL LAW IN THE PETTY COURTS The nineteenth-century criminal justice system also included petty courts, which heard the minor criminal cases, misdemeanors, and quasi-criminal cases and offered a different perspective on the extent of the power of the local state. In the colonial era these courts were often sites of neighborhood justice, run by justices of the peace who often had no legal training or experience and received no regular salary, instead collecting their pay in fees. Through the first half of the nineteenth century, these petty courts usually heard cases involving people from the surrounding communities, and the justices of the peace often ruled based on their personal knowledge of the parties before them, rather than any legal principle. In some petty courts, in particular those in Philadelphia, informality was reinforced by the standard practice of prosecution by private people.Without the requirement of lawyers, even people from the poorest neighborhoods felt free to go to the so-called alderman’s court to get justice, recourse, or revenge. But to view all this as evidence that the petty courts were a mainstay of the localized state, where the people expressed a sovereign will, is to confound process with principle. By the middle of the nineteenth century, the Market Revolution created impersonal worlds full of strangers in place of the communities that had sustained these courts in the earlier period. Organized police forces put additional pressure on the petty courts, as arrests swamped them with cases. Under the pressure of increased use, judges subjected more defendants to summary punishment and were unable either to channel or direct popular notions of justice. Even as they failed to serve as instruments of the state, the petty courts also ceased to provide much in the way of sovereign power to the Cambridge Histories Online © Cambridge University Press, 2008 154 Elizabeth Dale people who appeared before them. Contemporaries complained that those who brought claims to these courts, or appeared before them, saw them as nothing more than an arena for disputation, on a par with the dueling ground, the barroom floor, or the street corner. In the antebellum era, the petty courts neither offered the certainty of the rule of law nor preempted the resort to alternative (and even more violent) means of settling differences. The situation only got worse after the Civil War. By 1880, petty courts had become assembly lines of punishment. Seventy percent of all the country’s jailed inmates by 1910 were serving time for minor offenses, such as drunkenness, vagrancy, or disorderly conduct, and most of them had been sentenced by one of these petty courts. Process, from Pittsburgh to California, became increasingly summary; few defendants received a hearing that lasted more than a minute or two. Although the judges often had a legal background, there were few, if any, lawyers in these courts, and less law. Most defendants were sentenced to time served or fined a few dollars (which often was more than they could afford and resulted in further jail time as they worked off the fine), though justice frequently depended on who the defendant was and where the crime occurred. In Chicago from 1890 to 1925 the vagrancy laws were used against tramps from out of town. In Pittsburgh in that same period, young African American men from the community were imprisoned under the tramp laws in numbers far out of proportion to their numbers in the population, whereas whites were underrepresented. In Buffalo in the early 1890s, vagrancy laws were used to break strikes, which meant most of the men convicted under those laws were white laborers. Some efforts were made to correct the problems of overcrowded courts. Faced with considerable hostility to its disorganized and lawless police courts, in 1906 Chicago collapsed them all into a centralized municipal court system. This new court heard petty crimes and handled preliminary hearings, as had the police courts before it. The difference lay in the way the new system handled those cases. Specialized courts were set up to hear particular matters; Morals Court, for example, heard all cases involving prostitution. Initially specialization reduced the number of cases before the court, which permitted the judges to devote more time and expertise to their cases. For a brief period after these reforms, the new courts were a place where working-class and poor men and women brought private prosecutions. But popular use of the new courts came with a cost. Staffed with a phalanx of social workers and social scientists trained in a variety of approaches (including, at least in the period aroundWorldWar I, eugenics) who supported judges with the power to sentence people to indefinite probation, the municipal court system was no longer a place for parties to air out neighborhood problems and then go home. Women who filed claims Cambridge Histories Online © Cambridge University Press, 2008 Criminal Justice in the United States, 1790–1920 155 against their husbands, parents who used the court to control their children, and any other defendant brought before the court in some other way found that it became a permanent part of their lives. Long after the initial cases had come to an end, judges, probation officers, and the court’s support staff continued to track the parties. Chicago’s Juvenile Court, created in 1899, had a similar impact on the lives of its charges and their families. Like the Municipal Court, the Juvenile Court favored ad hoc, personalized judgments; social science ideals, not law, influenced the court’s decisions. For all that they permitted extended intrusions into the lives of the people who appeared before them, the new municipal court systems were never creatures of an omnipresent state. Government underfunding meant that in its first decades, private individuals and institutions financed much of the work of Chicago’s Juvenile Court and influenced its direction in the process. The Chicago Municipal Court was also subject to a variety of private influences, as reformers and social scientists played a role shaping its direction. Needless to say, reformers used the two courts as sites on which to pitch competing ideas. The result was that the government spoke not with a single voice, but with many voices. As much as overburdened dockets limited the police courts as a source of state authority, the competing and conflicting theories drifting out of the Juvenile and Municipal Courts weakened the ability of the state to use either as a source of authority as well. VI. SUBVERTING THE SUBSTANTIVE LAW Problems with the court systems were made all the more stark by the endless efforts, throughout the nineteenth century, to reform the substantive criminal law. Inspired by a variety of influences from the Enlightenment desire to make law more rational to a republican demand that law become more accessible to the public, in the early national period many states, most of them in the North, began to make crime a matter of statutory rather than common law. Pennsylvania began an extended effort to reform the criminal law in 1794, with the passage of a statute that split common law murder into two separate offenses. As other states followed its lead, many, often bowing to public pressure, added new crimes to their books, criminalizing behavior that had been frowned on, but legal before. Pennsylvania, which had passed its original blue laws in the colonial era only to see them fall into disuse in the 1740s, passed a law in 1779 that outlawed work and certain kinds of diversions on Sunday. Charleston, South Carolina, passed a Sunday closing law in 1801; toward the end of the antebellum era California passed two Sunday closing laws, one in 1855 that outlawed noisy amusements and a second in 1858 that closed stores and prohibited the sale of goods. Cambridge Histories Online © Cambridge University Press, 2008 156 Elizabeth Dale As time went on, other types of morals legislation joined the Sunday closing laws. In the 1830s, states as far apart as Maine and Michigan passed statutes prohibiting adultery, fornication, incest, and sodomy. That same decade Illinois passed a law prohibiting the sale of playing cards, dice, and billiard balls (as well as obscene materials), and temperance laws swept New England in the 1850s. Typically, these laws were intended to increase state control of behavior and were prompted by fears that urbanization was exposing people, particularly young men and women, to corrupting influences. To that end, enforcement often targeted particular groups; in St Louis during the 1840s, brothels were winked at, while prostitutes who rolled their tricks were charged. Notwithstanding selective enforcement, and often in fact because of it, many of these laws were subject to challenge, formal and informal, throughout the century. In 1833, a Jewish merchant from Columbia, South Carolina, prosecuted under a city ordinance that prohibited the sale or liquor or confections on Sunday, argued that the law deprived him of the religious freedom he was guaranteed by the state constitution. The trial court upheld the law on prudential grounds, concluding that custom and practice in the state declared Sunday to be the Sabbath and that the presence of large numbers of free blacks and slaves on leave in the city on Sunday necessitated laws that restricted temptation. A decade later, the Supreme Court of South Carolina heard a challenge to a similar law, this one brought by a Jewish merchant in Charleston who argued that his constitutional rights to religious freedom were violated by a Sunday closing law. Once again the court rejected that argument, on the ground that the state’s police power gave it the authority to pass any law to punish behavior that shocked the conscience of the community. The court added that in South Carolina, conscience was Christian. While Sunday closing laws and other morals legislation were typically passed as a result of pressure from groups interested in enforcing a morality based on Christian (usually Protestant) precepts, most state courts upheld Sunday closing laws on prudential, rather than religious, grounds. In 1848, the Pennsylvania Sunday closing law was upheld against a challenge by a Seventh Day Adventist. In its ruling the state supreme court noted that Sunday had become a traditional day of rest and tranquility and concluded that the law merely reflected that custom. A Missouri court upheld a Sunday closing law in the 1840s on similar grounds, noting that convention had declared that Sunday should be a day of peace and quiet. But while courts upheld Sunday closing laws, in practice they were dead letters in most places by mid-century. Attempts from 1859–67 to enforce a law in Philadelphia that prohibited the operation of horse cars on Sunday were unsuccessful; by 1870 New York’s ban on public transportation on Sunday was a nullity; and Cambridge Histories Online © Cambridge University Press, 2008 Criminal Justice in the United States, 1790–1920 157 popular defiance of California’s Sunday closing laws led that state’s supreme court to strike the law down in the early 1880s. Efforts to use criminal law to control morality continued after the Civil War. Throughout the 1870s many states passed laws regulating obscenity, often modeling their laws on the federal Comstock Laws. Some states also criminalized the use of drugs or passed temperance legislation. Often these laws reflected considerable lobbying by reform groups, many of them dominated by women: the dispensary law that the South Carolina legislature passed in 1894 followed a decade and a half of efforts by the Women’s Christian Temperance Union (WCTU) and other local women’s groups. Attempts, only some of them successful, were made to regulate sexuality as well. In the 1860s and early 1870s, lawmakers in New York considered passing laws that would permit prostitution in the city but require all prostitutes to be licensed and subject to medical examinations. That effort failed, but St. Louis succeeded in passing a licensing law for prostitutes in 1870, although it was rescinded in 1874. Responding to shifts in medical knowledge, as well as pressures from doctors who sought to increase their professional authority by restricting the powers of midwives, the period after the Civil War was marked by a series of laws that made it a crime to perform abortions. In that same period, fear that the young women who flocked to the nation’s cities were inadequately protected against sexual predators led many states to pass statutory rape laws and raise the age of consent. The fate of those laws in the last decades of the century offered another example of how laws could be subverted, demonstrating the continued weakness of the local state. From Vermont to California, the reformers who pressed for passage of statutory rape laws hoped to protect young women from predatory older men, and in a few states, such as Vermont, those aims informed prosecutions until well into the twentieth century. But in California, the law was under attack from the first. Initially, arresting officers, judges, and prosecutors undermined the law, choosing to protect men who had sex with minors by refusing to arrest, prosecute, or convict them. After more judges more sympathetic to the law’s aims were put on the bench, their efforts to enforce the law to protect vulnerable young women were complicated, and not infrequently thwarted, by parents who used the laws to try to regain control over their teenaged daughters. What began as a paternalistic effort to protect vulnerable young women by targeting a class that seemed to expose them to especial harm was transformed into an instrument to control the young women instead. The problem of popular resistance was not confined to morals legislation. The Illinois Civil Rights Act of 1885 was intended to provide a state Cambridge Histories Online © Cambridge University Press, 2008 158 Elizabeth Dale law remedy to blacks barred from places of public accommodation. The act had civil and criminal aspects, but by 1920 the combination of businesses that refused to comply with the law and failures of both public and private prosecution rendered both parts of the law a dead letter. Juries undermined other laws by refusing to enforce laws that were on the books. Just as they nullified when they refused to treat honor killing as murder, so too they nullified when they refused to enforce laws creating criminal defenses, such as insanity. The nineteenth century had seen the rise of the insanity defense, as most jurisdictions in the United States adopted the M’Naughton Rule. Yet while that law was intended to reinforce the concept of mens rea and provide greater protections for defendants, its guarantees were mostly honored in the breach. Arthur Train, a prosecutor in New York City at the turn of the century, reported that jurors systematically refused to follow the insanity defense, even in cases where the defendant was clearly insane. Rather than enter a finding of insanity, jurors preferred to sentence insane defendants whose killings did not seem outrageous to a number of years in prison, and sentenced other, equally insane defendants whose offenses seemed shocking, to death. Jurors outside of New York worked from a similar pattern, as popular opinion condemned insanity defenses as legalisms designed to subvert justice. VII. PROFITABLE PUNISHMENT The same reform movement at the end of the eighteenth century that resulted in the codification of substantive criminal law prompted reforms of punishment. Reformers argued that punishment was the key to criminal justice and that sentencing was a vital part of punishment. Particular emphasis was placed on making punishment fit the crime, with the result that many states sharply reduced the number of crimes they considered capital. In 1790, Pennsylvania passed a law declaring that several felonies, among them robbery and burglary, would no longer be capital offenses. Four years later, as part of its redefinition of murder, Pennsylvania declared that only first-degree murder was a capital crime. Over the next several decades, Virginia and most other states joined this process, significantly reducing the number of offenses they punished by death. By 1850 South Carolina had reduced the number of capital crimes it recognized to 22, down from 165 in 1813. In 1779, Thomas Jefferson had argued that to deter crimes punishments had to be both proportionate to the offense and of determinate length. Progressive reformers at the end of the nineteenth century took the opposite approach, arguing that indefinite sentences were best suited to deterring crime and reforming those convicted. A focus on the difference in those Cambridge Histories Online © Cambridge University Press, 2008 Criminal Justice in the United States, 1790–1920 159 arguments obscures the more important historical point – regardless of what the laws on the books required, for most of the nineteenth century a variety of practices made indeterminate sentencing the norm. In Massachusetts, as we have seen, the first plea bargain, in which a defendant exchanged a guilty verdict for a set sentence that was less than the possible sentence, was entered in 1808. A defendant charged with a violation of the state liquor license law pled guilty to one of four counts, in exchange for having the other three counts dropped. He paid a fine and suffered no other punishment. As that original outcome suggests, those who entered into plea agreements might receive sentences that had little to do with the statutory punishment for their underlying crime. But even defendants who went to trial, and were sentenced in accord with statutory schemes, often served different periods of time. Pardons were used to reduce prison time and could be issued at the behest of a prison administrator, who might wish to reward good behavior or simply ease the pressures on an overcrowded jail. A related practice, the reduction of sentences for “good time” (good behavior), put the power to reduce sentences directly into the hands of prison administrators, though usually with some limitations as to the amount of time that a sentence could be reduced. A related variation on this process, parole, was a European invention that was adopted in U.S. prisons after the Civil War. It again gave prison authorities the power to release some inmates early, though in contrast to pardoned prisoners, or those whose sentences were reduced for good behavior, parole was a conditional release. Each of these practices helped to make the even the most specific sentence indeterminate, as did probation, which permitted convicted defendants to serve no sentence so long as they maintained good behavior. The practice was formally recognized in Massachusetts in 1836, but had antecedents in a variety of other practices; some, like the peace bond that dated back to the seventeenth century, were formally recognized by the courts, while others, like the practice of failing to hear charges against certain defendants so long as they behaved, had merely been informal processes. Supervision was another form of probation that was initially applied to juvenile offenders and then slowly transferred over to use with some adult prisoners. The practice of indefinite sentencing was reinforced by the most significant reform of punishment in the nineteenth century, the creation of the penitentiary. During the Revolutionary Era, most states imprisoned convicted prisoners in rickety local jails, from which there were many escapes, though some states had prisons that were more like dungeons, where prisoners were manacled to the wall or floor of a communal cell. In 1790, the year that Connecticut converted an abandoned copper mine into a dungeon-like prison, Philadelphia remodeled its Walnut Street jail and sparked a major change in imprisonment in the United States. Cambridge Histories Online © Cambridge University Press, 2008 160 Elizabeth Dale The idea behind the new Walnut Street prison was twofold: prisoners who previously had been assigned to do public works on the streets of Philadelphia wearing uniforms and chains would henceforth be isolated from the populace (whether to protect the public from being corrupted by the prisoners or vice versa was subject to debate); in their isolation, prisoners would be given time and solitude in which to contemplate their offenses and repent. To those ends, inmates were isolated in individual cells and required to keep silent when they had contact with other prisoners during the day. Yet practice did not completely square with purpose. While prisoners were removed from contact with the public on the streets, they were not completely separated from the public gaze. For most of the antebellum era, Pennsylvania prisons admitted visitors for a small fee, in exchange for which they were allowed to watch the prisoners go about their daily lives. Nor did separate cells always breed the desired penitence; in 1820 a riot in the Walnut Street prison led to several deaths. That failure did not undermine Pennsylvania’s enthusiasm for the general project. In the 1820s the state opened two penitentiaries, one, in Pittsburgh, known asWestern State Penitentiary, and the other, in Philadelphia, known as Eastern State. Western State was beset by administrative problems for several years, but Eastern State quickly became a model for other states to follow. There, the scheme initially set up at Walnut Street Prison was modified so that prisoners no longer mingled with one another during the day. Instead, they remained in isolation for 23 hours out of 24, working and living in separate cells. At roughly the same time that Pennsylvania was refining its penitentiary model, New York was experimenting with its own. It opened Auburn Prison in 1805 and for the next two decades experimented with living arrangements in an effort to achieve the perfect system. During the 1820s, prisoners at Auburn were also placed in isolation, but it was more extreme than the Pennsylvania version since the prisoners at Auburn were not given any work to occupy their time. In an effort to use loss of individual identity as a further means of punishment, Auburn’s prisoners were assigned uniforms, shaved, and given limited access to family, friends, or lawyers. They marched to and from their cells in lockstep and always in ordered ranks, and they were supposed to be silent at all times. The result was a disaster. After several prisoners at Auburn committed suicide and several others attempted it; the prison administration concluded that the system was unworkable. In 1829, a modified system of punishment, which came to be known as the Auburn Plan, was put into effect. Under this scheme, prisoners worked together during the day (in contrast to the situation at Eastern State, where they worked in isolation) and then were confined to individual cells at night. This continued to be the general rule at Auburn until overcrowding in Cambridge Histories Online © Cambridge University Press, 2008 Criminal Justice in the United States, 1790–1920 161 the middle of the century forced the prison administration to abandon the solitary cell. Reformers in Pennsylvania and New York hoped that a regime of work, along with regimented lives, would teach prisoners self-discipline and selfrestraint. But if reformers intended prison labor to be only one element of a holistic effort to restore inmates to virtue and industry, in the hands of prison administrators and state governments it became the driving force behind the new prisons. After administrators at Auburn claimed that their prisoners produced such a significant profit that the prison did not need to seek appropriations from the legislature, profits became the explicit goal of penitentiaries built in many states – Massachusetts, New Hampshire, Ohio, Kentucky, Alabama, Tennessee, Illinois, Georgia, and Missouri. The different states pursued profit in different ways and with different rates of success. Between 1800 and 1830 the penitentiary administrators in Massachusetts ran the prison industry, while in nearby New Hampshire the state sold its inmates’ labor to private contractors, who employed inmates in shoemaking, stone cutting, and blacksmith work. Inmates in the penitentiary in Alabama also produced a range of goods, including clothing, shoes, farm equipment, and furniture, but in contrast to New Hampshire, their work was leased to a single individual who ran the prison as if it were a small manufacturing concern. Until 1853, Missouri leased its inmates out to private people. When public anxiety about escaped prisoners finally led administrators to abandon that practice, the state adopted a modified version of the Massachusetts model, building factories within its various prisons and having the inmates work in-house. In yet another variation on this theme, from 1831 to 1867 Illinois leased both its prisoners and the buildings they lived in to businesses. The profits realized by the different states were as varied as their practices. Penitentiaries in Kentucky and Alabama turned steady profits in the decades before the Civil War, while the penitentiaries in Georgia usually did not. Studies of the Alabama and Kentucky prisons argue that they profited by dint of good management; other did not. The Massachusetts penitentiary turned a profit by bribing inmates to work; the penitentiary in Kansas made a profit, as did Michigan’s, by taking in prisoners from other systems for a fee (Kansas took in prisoners from Oklahoma, Michigan took in federal prisoners). The result, at least in Kansas, was a severely overcrowded prison. Most prisons, in addition, relied on beatings and other forms of punishment to make sure inmates did their assigned work. Whether it was because of outrage over financial shenanigans or merely the result of its famously contrarian mindset, South Carolina did not build a penitentiary until 1866, preferring to rely on its county jails to hold prisoners after they were convicted. Although North Carolina and Florida Cambridge Histories Online © Cambridge University Press, 2008 162 Elizabeth Dale joined South Carolina in resisting the trend, most other states built penitentiaries before the CivilWar and resumed the practice at war’s end. Most states continued to seek profits from their prisoners into the twentieth century. Illinois maintained its modified convict leasing system until organized labor forced through a law barring prison work in 1903, Kansas kept up its struggle to make a profit by housing inmates until protests from Oklahoma stopped its practices in 1909, Missouri ran its prison as a profit center until 1920, and New Hampshire did not abandon the practice of convict leasing until 1932. While the profit motive remained unchanged, methods did alter in some states in the aftermath of the Civil War. These states, which were mostly located in the South, began to lease prisoners out to private enterprises, much as Missouri had done in the antebellum period. Florida, which had tried and failed to make a profit on the penitentiary that it finally created in 1866, began to lease out its prisoners to turpentine farmers, phosphate mine owners, and railroad companies beginning in 1877. It continued the practice throughWorldWar I.Tennessee and Alabama leased their prisoners to coal mining concerns, and initially both states found the process quite lucrative. By 1866, each state was bringing in $100,000 a year from the prisoner leases, a sum that represented one-third of their respective budgets. But as time went on, problems arose. Tennessee in particular had difficulties when non-convict miners rioted and forced coal mining companies to release their prisoners and close down their mines. Alabama’s experiment with convict miners was slightly more successful, and the state used convicts, particularly African Americans, in its mines for several years. But Alabama’s system was subject to free labor protests as well and worked only so long as the mining companies were willing to give the convict miners pay and privileges. When that arrangement broke down, the convict miners refused to produce and the enterprise became less profitable. Other Southern states, beginning with Georgia in 1866, shifted away from leasing out their inmates and instead put them on chain gangs to do public work. The chain gang was not a Southern invention; from 1786 to the opening ofWalnut Street Prison in 1790, convicts in Philadelphia were assigned to gangs that did public labor on the streets of the city wearing a ball and chain. In the 1840s, San Francisco housed prisoners on a prison ship, the Euphemia, at night and assigned them to do public works in chain gangs during the day. Nor did the idea spring fully formed from the Georgia soil at the end of the Civil War. Initially, Georgia assigned misdemeanor arrestees to the chain gang and leased its felony convicts out to private enterprise. But time convinced the government of the benefits of having all its convicts work the chain gang to build public roadways, and in 1908 Georgia passed a law that prohibited convict leasing and put all its prisoners Cambridge Histories Online © Cambridge University Press, 2008 Criminal Justice in the United States, 1790–1920 163 (including women, who served as cooks) to work in gangs. Other states, among them North Carolina and South Carolina, followed Georgia’s lead, assigning some inmates to a variety of public works projects. The practice continued well into the twentieth century. The years after the CivilWar saw another development in imprisonment, as specialized prisons were gradually built to deal with specific populations. Once again, this was not an entirely new idea. The first house of refuge, a special institution for juvenile offenders, opened in New York in 1825, and other cities including Boston quickly launched comparable initiatives. Twenty years later, Boston offered a refinement on this principle when it opened the first reform school for boys. The first reform school for girls, the Massachusetts State Industrial School for Girls, did not open until 1856, and it was not until after the CivilWar that other states, among themWisconsin, Iowa, Michigan, and Kentucky, created similar institutions. They did not, however, all follow the same model. When the Louisville, Kentucky, House of Refuge opened in 1864, its inmates were boys and girls. In contrast, when the Girls Reform School of Iowa opened for business in 1866, it was, as its name implied, a single-sex institution. The Michigan Reform School for Girls, which opened in 1884, not only had an inmate population that was limited to young women but its entire staff was female as well. While these institutions physically separated some young inmates from adult convicts, far more young offenders were housed with the general prison population. Even after the Civil War, offenders under 21 made up a portion, sometimes a significant one, of the populations in penitentiaries and county jails. In 1870, California state courts assigned boys as young as 12–15 to San Quentin and Folsom prisons. Of the 7,566 people assigned to Cook County Jail (in Chicago) in 1882, 508 were under 16 (one was no older than 8); 1,413 were under 21. Six years later, in 1888, Illinois executed 17-year- old Zephyr Davis for murder. In the 1890s, a Savannah, Georgia, newspaper reported that one-third of the people assigned to the local penitentiary were younger than 20, and 80 of them were less than 15 years old. Nor were juvenile offenders exempt from the profit motive that drove corrections. In Tennessee, juvenile offenders, who were not separated from adult inmates until the twentieth century, were expected to earn their keep by their labor, just as adult inmates were. The same was true for juveniles in jurisdictions that did separate them from the general prison population. Inmates in the New York House of Refuge were contracted out to private businesses or expected to do contract labor within House itself. Inmates at the Michigan Reform School were also contracted out to private businesses. The same held true at reformatories opened for women offenders. The Detroit House of Corrections, a reformatory for women, ran a successful chair manufacturing business in the early 1870s. Cambridge Histories Online © Cambridge University Press, 2008 164 Elizabeth Dale Reformers, particularly women, had lobbied states to create all-women cell blocks and to hire women as matrons for female prisoners as early as the 1820s. Some states built special reformatories for women prisoners in the middle of the century, but for much of the nineteenth century women were assigned to the same penitentiaries as men. Four women were incarcerated at Eastern State in 1831, all of them African American. Although there was a special cell block for women in that prison, at least one of the women, Ann Hinson, did not live in it, but rather occupied a cell in the most desirable block among male prisoners. Hinson enjoyed a special status because she served as the warden’s cook and perhaps his mistress, but her situation, though extreme, was not uncommon. The Old Louisiana State Penitentiary, which functioned from the 1830s to 1918, held male and female prisoners (and a number of the prisoners’ children) throughout most of its history. Illinois housed female inmates (less than 3 percent of its prison population) in the penitentiary at Joliet until it finally opened a women’s prison in 1896. Few states took the situation of women inmates seriously in the late nineteenth century, Missouri appropriated money for a women’s prison in 1875, but neglected to build one until 1926. Idaho created a women’s ward in its penitentiary in 1905, but did not build a women’s prison until 1974. In contrast to those states that assigned women to penitentiaries along with men, Massachusetts housed its women prisoners in the county jails until it created the Reformatory Prison for Women in 1875. One reason for the delays in creating separate women’s prisons was economic. The prisons and prison industries relied on women to do their housekeeping. The first completely separate prison for women (actually, a reformatory, not a penitentiary) opened in Indiana in 1873.Afew years later, in 1877, the first reformatory for men 30 years and under opened in Elmira, NewYork. In theory, it was intended to rehabilitate younger prisoners by educating them and training them for useful work. To that end, its inmates were graded on their conduct and placed in different classes based on their behavior, with the idea of gradually conditioning them to return to the outside world. In practice, however, things were much as they were in the penitentiaries. Elmira’s first director, Zebulon Brockway, had previously been director at the Detroit House of Corrections, where he had been noted for turning a profit with the prison’s chair manufacturing business, and he brought the profit motive with him. Elmira inmates worked the entire day in the reformatory’s several factories and spent only an hour and a half in the evening at lessons in the reformatory’s carefully designed classrooms. Although the reformatories boasted a range of services for their inmates, the greatest differences between the penitentiary and the reformatory were more basic. One, had to do with sentences. Inmates in reformatories typically had indeterminate sentences so they could work themselves out of Cambridge Histories Online © Cambridge University Press, 2008 Criminal Justice in the United States, 1790–1920 165 incarceration. In practice, however, as SamuelWalker notes, their sentences typically lasted longer. The other difference had to do with what brought the inmates to the reformatories in the first place. While some were imprisoned for committing crimes, many, especially women and children, were imprisoned on much more amorphous grounds – having drunken parents or being incorrigible. Capital punishment was the exception to both the practice of indefinite sentencing and the desire to turn punishment into profit. Aside from the reduction in the number of capital offenses, capital punishment in the United States changed very little from the ratification of the Constitution to the end of World War I, although there were some efforts at reform in both halves of the century. In 1846, Michigan abolished capital punishment, and a handful of other states followed suit. Other states retained the death penalty, but set limits on it in other ways. By 1850, many states had passed laws or informally agreed to move executions to restricted venues, usually inside prison walls, mostly in an effort to emphasize the somber nature of the event and reduce the degree to which an execution was a public and popular spectacle. But for all the rules that provided that executions should occur within the jail yard, rather than in front of an easily excited crowd, convicted murderers, like the victims of lynch mobs, continued to be hanged before enthusiastic mobs, whose members wangled tickets and passes to the event from sheriffs and local politicians or simply slipped in past the guards watching the gates. The pattern continued after the Civil War, as newspapers reported the executions in grand detail for those who could not make it to the hanging themselves. In Chicago, coverage of an execution typically began a day or so before, with extended stories of the last days, and then the final hours, of the convict. Those stories led up to accounts of the final scene, which reported on the manner in which the condemned approached death (whether with manly courage, cowardice, or dumb indifference), recounted the religious devotions, if any, that preceded the hanging, and recorded any last words that the defendant uttered before the drop. The hanging of particularly infamous criminals, such as the Haymarket defendants, provided Chicago’s papers with at least a week’s worth of stories, but even Frank Mulkowski, dismissed by most papers as nothing more than a brutish Polish immigrant, earned several days’ worth of coverage prior to his execution in 1886. The biggest change in the death penalty occurred in 1890 when, after several years of debate and considerable lobbying by the purveyors of electricity, the first death by electrocution was attempted at Auburn Penitentiary in New York. Described as quicker, surer, and less painful than death by hanging – which, in the hands of an inept hangman, all too often involved slow strangulation – the first electrocution was anything but. The condemned Cambridge Histories Online © Cambridge University Press, 2008 166 Elizabeth Dale prisoner,William Kemmler, did not die until the second attempt and had to sit strapped to his chair convulsing uncontrollably for several minutes after the first attempt while the generator was restarted. Fortunately for those who favored the new approach, the next year New York successfully executed four men at Sing Sing using the electric chair. Although that execution quieted some who protested against the practice, opponents of the death penalty had some brief successes in this period. In 1907, Kansas abolished the death penalty, the first state to do so since before the Civil War. Within the next ten years, six other states followed suit; the last, Missouri, did so in 1917. But those successes were short lived. Two years after it passed the law abolishing the death penalty, Missouri reversed itself, reinstating the death penalty. By 1920, three of the other states that had just abolished the death penalty had reinstated it as well. CONCLUSION Standard, court-centered accounts of criminal justice in the United States over the long nineteenth century often have an unarticulated premise: that the country moved away from a localized system of criminal justice to embrace the European model of the nation-state, and in so doing abandoned its commitment to popular sovereignty. While some studies note the gains offered by this shift, particularly emphasizing the benefits of having the protections of the Bill of Rights apply to state court proceedings, others appear more concerned by the loss of an indigenous political tradition and the decline of community power. Framed as a narrative of declension, those histories gloss over the extent to which extra-legal violence, popular pressure, and exploitation shaped criminal justice in America during the long nineteenth century. They can do so only by ignoring the struggles that pitted governed against government in state court criminal trials, and the moments when different parts of the government battled one another. And when they do so, they forget the extent to which legal decisions depended more on who the parties were, or the passions of the moment, than on what the law required. Contemporaries had a sharper understanding of what was going wrong and what needed to be done. The first Justice Harlan’s laments in Hurtado were echoed by Roscoe Pound’s complaints about popular influence on law.18 Nor were those objections the product of some sort of post–Civil War decline. In the antebellum era, for every article that was published 18 Roscoe Pound, “The Need of a Sociological Jurisprudence,” Green Bag 19 (October 1907), 607. Cambridge Histories Online © Cambridge University Press, 2008 Criminal Justice in the United States, 1790–1920 167 praising the local courts when they rendered a verdict consistent with local ideas of justice, rather than the rule of law,19 there was a second that deplored the same verdict as a sign of the nation’s retreat into a jurisprudence of lawlessness.20 19 Philadelphia Public Ledger 8 April 1843, 2 (verdict in Mercer trial). 20 Anon., “The Trial of Singleton Mercer for the Murder of Mahlon Hutchinson Heberton,” New Englander 1 ( July 1843), 442. Cambridge Histories Online © Cambridge University Press, 2008 6 citizenship and immigration law, 1800–1924: resolutions of membership and territory kunal m. parker The paradigmatic function of a national immigration regime is to defend a territorial inside from a territorial outside. Access to and presence within this territorial inside are determined on the basis of whether one is a “citizen” or an “alien,” where both terms are understood in their formal legal sense. All of the activities we associate with the contemporary U.S. immigration regime – exclusion and deportation, entry checkpoints, border patrols, detention centers, and the like – make sense in these terms. Liberal American theorists have provided powerful moral justifications for this defense of the territorial inside from the territorial outside on the ground that it is only in this way that the coherence of a national community on the inside can be preserved and fostered. In this rendering, the coherence of the national community may not take the form of an oppressive Blut und Boden nationalism. Rather, the territorial inside must be a homogeneous space of rights enjoyed by all insiders. Although most of these insiders will be citizens, resident immigrants will be treated fairly and given a reasonable opportunity to become citizens. The very coherence of the territorial inside as a homogeneous space of rights justifies immigration restriction. Outsiders – who are imagined as citizens of other countries – have no morally binding claim to be admitted to the inside. This theoretical rendering of the activities of the national immigration regime is the product of recent history. For the first century of the United States’ existence as a nation (from the American Revolution until the 1870s), a national immigration regime that regulated individuals’ access to, and presence within, national territory on the basis of their national citizenship simply did not exist. Even after such a regime came into existence in the 1870s, the idea of numerical restrictions on immigration emerged only slowly and was not comprehensively established until the 1920s. More important, both before and after the establishment of a national immigration regime, there was simply no such thing as a territorial inside that was a homogeneous space of rights enjoyed by all those who were 168 Cambridge Histories Online © Cambridge University Press, 2008 Citizenship and Immigration Law, 1800–1924 169 territorially present. Throughout American history, the territorial inside has always been rife with internal foreigners or outsiders who have – in a manner exactly analogous to the figure of the outsider of liberal immigration theory – found themselves restricted in their ability to negotiate the American national territory or otherwise inscribed with a lack of belonging. Indeed, the activities of the national immigration regime themselves appear inevitably to be accompanied by an often deliberate blurring of the distinction between inside and outside, citizen and alien. To recover this history, it is necessary first to invoke the now-vanished world of contested non-national memberships and territorialities that prevailed in the United States until the Civil War. Even as it confronted mass immigration from places like Ireland and Germany, this was a world characterized by multiple internal foreignnesses – principally those applicable to native-born free blacks and paupers – that as such prevented the emergence of a national immigration regime that could direct its gaze outward on the external foreignness of aliens. Only after the Civil War, when national citizenship had been formally extended to the entire native-born population and national citizenship was tentatively linked to the right to travel throughout national territory, could a national immigration regime premised on the external defense of national territory emerge. Although the core legal relationship between national citizenship and national territory was established for the first time as a result of the Civil War, the path to a national immigration regime of numerical restrictions and “illegal aliens” was neither automatic nor predetermined. Between 1870 and 1924, confronted with a vastly expanded immigration stream from Southern and Eastern Europe and Asia, the American immigration regime shifted from a strategy that sought to sift out limited numbers of undesirables from a basically desirable immigrant stream to a strategy based on the presumption that no alien could enter, and remain within, national territory unless explicitly permitted to do so. This shift took place in a set of overlapping contexts familiar from the writings of American historians – industrial capitalism, scientific racism, formal imperialism, expansion of the national government, and the rise of the administrative state. Yet each new restriction was beset with all manner of uncertainty. How precisely, for example, was one to define “whiteness” for purposes of naturalization law? How was one to determine country quotas for the new immigration regime? How was one to set boundaries between the power of immigration officials and the power of courts? Notwithstanding the formal extension of national citizenship to the entire native-born population in the aftermath of the Civil War, various internal foreignnesses emerged as the national immigration regime sought to exclude certain kinds of aliens as undesirable. For every undesirable Cambridge Histories Online © Cambridge University Press, 2008 170 Kunal M. Parker immigrant of a certain ethnic or national description, there corresponded a domestic minority subjected to discrimination and surveillance. Groups that had once found themselves on the inside as the result of a colonial or imperial acquisition of territory were reclassified to the “outside” and fell within the purview of the immigration regime. Conjoined to these new species of internal foreignness must be the legally sanctioned, formal and informal, public and private foreignness imposed on African Americans in the form of segregation – a closing off of public and private spaces analogous to the closing of the border to immigrants. Ironically, important parts of the battle against racial segregation in the urban North would be fought against European ethnic immigrants. The object of historicizing aspects of the contemporary U.S. immigration regime is to emphasize that there is nothing immanent in national citizenship nor inevitable about its relationship to national territory that points toward the kind of immigration regime that currently subsists in the United States. It is also to show, through an examination of the long history of American citizenship and immigration, that the distinction between inside and outside, citizen and alien, is never clean. I. EMERGING FROM THE EIGHTEENTH CENTURY (1780–1820) It is essential to distinguish rigorously between the new category of U.S. citizenship that emerged in the aftermath of the American Revolution and the state-level legal regimes that governed the individual’s rights to enter and remain within state territories. In the late eighteenth and early nineteenth centuries, the legal relationship between national citizenship and national territory did not undergird immigration restriction. Instead, U.S. citizenship as a category slowly infiltrated the state-level regimes. During the Confederation period, the individual states moved to define their own citizenries and to establish naturalization policies. At the same time, however, there was a sense that the American Revolution had created a national politico-legal and territorial community that transcended state boundaries. This is reflected in the “comity clause” of Article IV of the Articles of Confederation, which reads in part as follows: “The better to secure and perpetuate mutual friendship and intercourse among the people of the different states in this union, the free inhabitants of each of these states (paupers, vagabonds, and fugitives from justice excepted) shall be entitled to all privileges and immunities of free citizens in the several states; and the people of each state shall have free ingress and regress to and from any other state.” The clause sought for the first time to create something like a relationship between national membership and national territory through the imposition of the duty of comity on the individual states. (Admittedly, Cambridge Histories Online © Cambridge University Press, 2008 Citizenship and Immigration Law, 1800–1924 171 as James Madison pointed out at the time, the clause did so in a confused way by asking states to accord the “privileges and immunities of free citizens” to the “free inhabitants” of other states.1) However, what is especially revealing about the clause are the classes of individuals it excludes from the benefits of this obligation of comity; namely, “paupers, vagabonds and fugitives from justice.” With the formation of the United States at the end of the 1780s, the category of U.S. citizenship emerged for the first time as the legal category that would define membership in the new national political community. An important feature was the idea of voluntary, as distinguished from perpetual, allegiance. The English theory had been that subjects owed lifelong allegiance to the monarch. Not surprisingly, the notion that allegiance could be chosen – and hence cast off – was important in justifying the break from Great Britain. Paradoxically, notwithstanding the new emphasis on the voluntary nature of allegiance, U.S. citizenship was extended among the native-born population by fiat. However, the question of what segments of the native-born population should count as U.S. citizens remained vague. As a sparsely populated country in need of settlers, the United States retained the basic jus soli or birthright citizenship orientation of English law. However, the principle of jus soli probably worked best only for native-born whites. At its moment of origin, the U.S. Constitution did not deal explicitly with the question of whether or not those belonging to other groups – free blacks, slaves and Native Americans – qualified as U.S. citizens by reason of birth in U.S. territory. The U.S. Constitution was more explicit about the induction of aliens into the political community. Article I, Section 8 gave Congress the power to promulgate “a uniform rule of naturalization.” In 1790, the first federal naturalization act limited naturalization to a “free white person” who had resided for two years in the United States, proved his “good character,” and taken an oath “to support the constitution of the United States.”2 The naturalization period was increased to five years by the Naturalization Act of 1795 and has remained at five years ever since, with only one brief aberration in the late 1790s.3 The U.S. Constitution also revamped the comity clause of the Articles of Confederation. Article IV, Section 1 provided that “the Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the 1James Madison, The Federalist, No. 42. 2Act of March 26, 1790 (1 Stat. 103). 3 Act of January 29, 1795 (1 Stat. 414). The aberration was the short-lived Naturalization Act of June 18, 1798 (1 Stat. 566), which increased the naturalization period to fourteen years. Cambridge Histories Online © Cambridge University Press, 2008 172 Kunal M. Parker several States.” The embarrassing, but revealing, reference to “paupers, vagabonds and fugitives from justice” in the “comity clause” of the Articles of Confederation was removed. Despite the inauguration of the category of U.S. citizenship, however, Congress did not acquire the explicit constitutional authority to formulate a national immigration policy. Neither did it attempt to establish one in practice. If one had to identify the principal mode in which U.S. citizenship was wielded against aliens at the national level, it would make most sense to say that U.S. citizenship acquired meaning principally as a means of controlling the influence of aliens in the national political arena. Segments of the American national leadership repeatedly expressed fears about the capacity of aliens reared under monarchies or carried away by the excesses of the French Revolution to exercise republican citizenship in a responsible fashion. Evidence of these fears may be observed in the Constitutional Convention’s debates over the qualifications for national political office and later, and more egregiously, in the Federalist anti-alien paranoia reflected in the passage of the Alien and Sedition Acts in the late 1790s. The point, however, is that immigration policies – those everyday policies that determined outsiders’ access to, and presence within, territory – remained in the hands of the states. State and local authorities regulated outsiders’ access to their territories without relying on U.S. citizenship as providing the exclusive logic for distinguishing between insiders and outsiders. For the most part, in the decades immediately following the American Revolution, the states continued colonial policies for regulating access to their territories. Colonial policies regarding the settling of British North America were influential in establishing an image of America that endured well beyond the Revolution. Hector St. John de Cr`evecoeur’s celebrated Letters from an American Farmer, which depicted America as a place where Europe’s dispossessed could flourish, had in fact been written before the Revolution, although it was not published until the 1780s. Furthermore, a set of concerted British policies that had constituted America as something of a haven for European Protestants by the mid-eighteenth century fed directly into the post-Revolutionary national idea, first articulated in Thomas Paine’s Common Sense, of America as “an asylum for mankind.” The actual legal structures regulating movement of peoples during the colonial period had always been distinct from the rosy vision of America as an “asylum.” Colonial assemblies had adhered to the mercantilist idea that population equaled wealth. However, they had also repeatedly expressed misgivings about the specific kinds of people entering their territories as a result of British policies. These misgivings could be categorized as dislike Cambridge Histories Online © Cambridge University Press, 2008 Citizenship and Immigration Law, 1800–1924 173 of (a) the foreign (with a particular animus directed against Catholics), (b) the criminal, and (c) the indigent. Of these, it is the last that determined most unequivocally the logic of colonial territorial restriction. What is especially noteworthy about colonial territorial restrictions is the seemingly indiscriminate way in which they mingled dislike of insiders and outsiders. The regulation of what was frequently labeled a “trade in persons” appears to have been an external manifestation of a highly articulated internal regime for regulating natives’ access to territory. The governing logic of this comprehensive system of territorial restriction is to be found in American versions of the seventeenth-century English poor laws. The idea was that the poor were to be denied territorial mobility as the poor, because of the fear that they would impose costs on the places they entered, whether they entered such places from a place “beyond sea” or from a place just a few miles away. It is particularly telling that local poor relief officials were entrusted with the responsibility for administering external and internal statutes regulating the territorial mobility of persons. In eighteenth-century Massachusetts, for example, shipmasters were required by a series of statutes to post a bond with local poor relief officials so that towns receiving “lame, impotent, or infirm persons, incapable of maintaining themselves . . . would not be charged with their support.”4 At the same time, townspeople were required in a series of “entertainment” statutes to notify local poor relief officials of individuals from other towns who were visiting them; failure to notify meant imposition of legal responsibility for any costs associated with such individuals on their hosts. Towns even provided their own legal residents with travel documents – species of internal passports – certifying that they would take them back in the event of illness or injury. In the eighteenth century, in other words, “foreignness” was a polyvalent word. It denoted those who were outside the larger community of allegiance and blood, to be sure, but could also designate those who came from neighboring towns and colonies. National membership was not mapped onto territory in such a way that it carried with it rights of access to national territory conceived as such. Nor did territorial disabilities follow uniquely and unequivocally from a lack of national membership. This sense that the poor were undesirable as the poor, and were to be denied territorial mobility regardless of their citizenship status, continued in full force after the American Revolution. As we have seen, the comity 4 “An Act Directing the Admission of Town Inhabitants,” in The Acts and Resolves, Public and Private, of the Province of Massachusetts Bay, 21 Vols. (Boston:Wright & Potter, 1869– 1922), I, chap. 23 (1701). Cambridge Histories Online © Cambridge University Press, 2008 174 Kunal M. Parker clause of the Articles of Confederation excepted “paupers, vagabonds, and fugitives from justice” from each state’s obligation to accord the “privileges and immunities of free citizens” to the “free inhabitants” of the other states. The native poor were thus rendered as internal foreigners to be denied territorial mobility. Although states remained faithful to colonial poor relief models in most essentials, they also began incrementally and confusedly to insert new categories of citizenship into these models. But the legislation of this period does not appear to have distinguished meaningfully between U.S. citizenship and state citizenship. Furthermore, the disabilities imposed on natives and aliens were roughly comparable and were the result of a local politics. For example, under New York’s 1788 “Act for the Better Settlement and Relief of the Poor,” shipmasters were required to report the names and occupations of all “persons” brought into the port of New York and would be fined £20 for each unreported person, and £30 if such person was a “foreigner.” The law further denied admission to “any person” who could not give a good account of himself to local authorities or was likely to become a charge to the city; such persons were to be returned “to the place whence he or she came.”5 Massachusetts chose to refer to state citizenship, rather than U.S. citizenship, in its legislation. Thus, in the early 1790s, in a dramatic departure from colonial practice, Massachusetts made citizenship “of this or any of the United States” (but not U.S. citizenship) a prerequisite to the acquisition of “settlement” or “inhabitancy” in a town, thereby making it impossible for non-citizens to acquire legal rights to residence and poor relief in the town in which they lived, worked, and paid taxes. The same law also contained various provisions intended to make it difficult for citizens from other states and Massachusetts citizens from other towns to acquire a “settlement.”6 Occasional statutory discriminations between citizens and aliens notwithstanding, indigent citizens might sometimes be worse off than indigent aliens. When cities and towns physically removed foreigners from their territories, they were far more likely to remove those who were citizens than those who were not, for the simple reason that it was cheaper to send someone to a neighboring state than to Europe. Connecticut’s law of 1784 expressed an accepted principle of sound poor relief administration when it authorized the removal of all foreigners who became public charges, so long as the cost 5 “Act for the Better Settlement and Relief of the Poor” (1788, chap. 62), Laws of the State of New York Passed at the Sessions of the Legislature Held in the Years 1785, 1786, 1787, and 1788, Inclusive (Albany:Weed Parsons and Company, 1886). 6 “An Act Ascertaining What Shall Constitute a Legal Settlement of any Person in any Town or DistrictWithin this Commonwealth,” Acts 1793, Chapter 34. Cambridge Histories Online © Cambridge University Press, 2008 Citizenship and Immigration Law, 1800–1924 175 of transportation did not exceed “the advantage of such transportation.”7 Of 1,039 individuals “warned out” of Boston in 1791, 237 were born in foreign countries, 62 in other states, and 740 in other Massachusetts towns. Of course, “warned out” means only that these individuals were rendered legally subject to physical removal, not that they were actually physically removed. But evidence of actual physical removals out of state in lateeighteenth century Massachusetts points toward removals to New York and Nova Scotia, rather than to Europe or theWest Indies. The highly local understanding of the distinction between insider and outsider points to a central feature of systems of territorial restriction in the late eighteenth and early nineteenth centuries; namely, that even as territorial restrictions were promulgated at the state level and began to incorporate the new categories of U.S. and state citizenship, individual cities and towns rather than state authorities remained responsible in the first instance for the administration of poor relief and territorial restrictions. As immigration increased in the late eighteenth and early nineteenth centuries, seaports such as Boston, New York, and Philadelphia began to protest the injustice of having to bear the burden of supporting sick, poor, and disabled aliens. Tensions developed between state and local authorities; they would become more serious and would be resolved only through bureaucratic centralization at the state level by the middle of the nineteenth century. In the late eighteenth and early nineteenth centuries, one other emergent system of internal territorial restriction should be mentioned: that applicable to free blacks. This system of territorial restriction was intertwined with that of the poor laws, but also distinct from it. Slaves had always been subject to spatial and territorial restrictions as slaves. However, in the late eighteenth and early nineteenth centuries, the Northern abolition of slavery and the introduction of manumission acts in the South brought the problem of free blacks into sharp focus. Towns and localities all over the North expressed distaste for free blacks and sought to exclude and remove them from their territories through any means available. The important point here is that Northern towns and localities were expressing hostility not only toward blacks from the territorial outside (fugitive slaves or free blacks from the mid-Atlantic or Southern states; sailors and other migrants from theWest Indies) but also toward individuals who had always been on the territorial inside (i.e., individuals who had been tolerated as town and local residents so long as they were slaves, but who had become repugnant with the coming of freedom). Freedom for Northern blacks brought with it, in other words, official, although ultimately unsuccessful, 7 Quoted in Marriyn C. Baseler, “Asylum for Mankind”; America, 1607–1800 (Ithaca, N.Y., 1998), 197. Cambridge Histories Online © Cambridge University Press, 2008 176 Kunal M. Parker efforts to render them foreign. As we shall see, this problem would become much more serious in the Upper South later in the nineteenth century. It is important, nevertheless, to establish that this distinct problem of internal foreignness began in the late eighteenth and early nineteenth centuries in the North. II. TENSIONS OF THE ANTEBELLUM PERIOD (1820–1860) From the perspective of the law of immigration and citizenship, the period from 1820 to 1860 was one of immense confusion. Although there was a marked development of a sense of national citizenship as implying certain rights with respect to national territory, this burgeoning national imagination coexisted with powerful – in the case of free blacks, increasingly powerful – internal foreignnesses. The result was two distinct sets of conflicts. The first conflict occurred over the question whether the U.S. government or the states possessed the constitutional authority to regulate immigration. There was no immigration restriction at the national level. Nevertheless, between 1820 and 1860, as part of its developing Commerce Clause jurisprudence, the U.S. Supreme Court chipped away at the states’ constitutional authority to regulate immigration. However, as long as slavery remained alive, the U.S. Supreme Court would not definitively rule that states had no constitutional authority to regulate immigration, because to do so would have stripped states – especially Southern states – of the power to regulate alien and native free blacks’ access to their territories. In this atmosphere of uncertainty surrounding the locus of constitutional authority over immigration restriction arose a second, distinct conflict: should the everyday regulation of outsiders’ access to territory take place at the state or local level? Since the eighteenth century, the regulation of outsiders’ access to territory had taken place at the local level. However, centralized state authority grew steadily throughout the antebellum period. Particularly as mass immigration into the United States picked up after 1820, state authorities increasingly became persuaded that the excessively parochial interests of local officials were obstructing the efficient regulation of non-citizens’ access to state territories. By 1860, after decades of experimentation and conflict between state and local authorities, large state-level bureaucratic apparatuses had emerged to regulate immigration into state territories. Federal-State Conflict and the Problem of Black Foreignness As the Republic matured, there emerged the sense that some relationship must exist between national citizenship and national territory. This sense was conventionally expressed in terms of the rights that citizens of one state Cambridge Histories Online © Cambridge University Press, 2008 Citizenship and Immigration Law, 1800–1924 177 enjoyed with respect to the territory of another. In 1823, in the clearest antebellum attempt to elucidate the meaning of the “privileges and immunities” clause of Article IV of the U.S. Constitution, Justice Bushrod Washington declared that the “privileges” within the meaning of the constitutional text were those “which are, in their nature, fundamental.” One of these allegedly “fundamental” privileges was “the right of a citizen of one state to pass through, or to reside in any other state, for the purposes of trade, agriculture, professional pursuits, or otherwise. . . . ”8 However, one also encounters judicial pronouncements to the effect that national citizenship as such implied a right to travel throughout national territory. For example, in 1849, Chief Justice Taney’s dissenting opinion in the Passenger Cases stated, “We are all citizens of the United States, and, as members of the same community, must have the right to pass and repass through every part of it without interruption, as freely as in our own States.”9 The apprehension that there was some relationship between national citizenship and national territory continued to leave open the interrelated questions of (a) who belonged to the community of national citizens and enjoyed rights to enter and remain within every part of national territory and (b) which authority, the federal or the state governments, had the power to exclude and remove non-citizens from territory. We explore the second question before turning to the first. The formal constitutional question was whether Congress possessed the power to exclude and remove non-citizens from national territory pursuant to Article 1, Section 8 of the U.S. Constitution, which gave it the authority “to regulate Commerce with foreign Nations, and among the several States,” or whether the states possessed a corresponding power as part of their regular and residual “police” power to promote the health, safety, and welfare of their populations. The paradoxes of the antebellum legal representation of the movement of persons as “commerce” should not be lost. To begin with, the eighteenth-century “trade” in indentured labor had essentially died out by 1820. More important, however, to argue that the movement of “persons” was “commerce,” and therefore that Congress could constitutionally regulate immigration, had anti-slavery implications. It opened the door for suggestions that Congress could constitutionally prevent the slave and free states from regulating the ingress of alien and native free blacks into their territories and even hinted, surreptitiously and by implication, that native free blacks might be U.S. citizens with the right to move throughout national territory. Accordingly, it was the pro-slavery wing of the U.S. Supreme Court that argued most insistently that “persons” were not “articles of commerce” and 8 Corfield v. Coryell, 4 Wash. C.C. 371, 380–81 (U.S.C.C. 1823). 9 Passenger Cases (Smith v. Turner; Norris v. Boston), 48 U.S. (7 How.) 283, 283, 492 (1849). Cambridge Histories Online © Cambridge University Press, 2008 178 Kunal M. Parker that tended most often to invoke the figure of “the immigrant” as someone who exercised volition in coming to the United States. In his dissent in the Passenger Cases, for example, Justice Daniel argued indignantly that “the term imports is justly applicable to articles of trade proper, – goods, chattels, property, subjects in their nature passive and having no volition, – not to men whose emigration is the result of will”; it would be a “perversion” to argue otherwise.10 For constitutional purposes, the invocation of the white immigrant as an actor capable of volition in movement served to secure the perpetuation of black slavery. The tussle between the view that states could not constitutionally regulate immigrant traffic and the (pro-slavery) view that states could constitutionally regulate the influx of all non-citizens as a matter of state police power was never resolved before the CivilWar. In 1837, in Mayor of the City of New York v. Miln, the U.S. Supreme Court upheld a New York law that required shipmasters to report passenger information and to post bonds for passengers who might become chargeable to the city.11 In 1849, however, in the Passenger Cases, a deeply divided Court struck down New York and Massachusetts laws that involved the collection of head taxes on incoming immigrants.12 Beneath this formal constitutional debate lay the explosive question of whether free blacks were part of the community of U.S. citizens and, as such, whether they possessed the right to travel throughout national territory. Throughout the antebellum period, both free and slave states adamantly insisted on their ability to exclude alien and native free blacks. Even in states that saw themselves as bastions of anti-slavery sentiment, free blacks were unwelcome. In 1822, in a report entitled Free Negroes and Mulattoes, a Massachusetts legislative committee emphasized “the necessity of checking the increase of a species of population, which threatens to be both injurious and burthensome. . . . ”13 States further west sought to oblige blacks seeking residence to give sureties that they would not become public charges. In other instances, blacks were forbidden to move into the state altogether, sometimes as a result of state constitutional provisions. The paranoia about the presence of free blacks was, of course, far greater in the slave states, where the presence of free blacks was thought to give a lie to increasingly sophisticated racial justifications for slavery. As the ideological struggle over slavery intensified, the situation of native free blacks in the South worsened. Slave state legislation usually barred the entry of free blacks 10 Passenger Cases at 506. 11 Mayor of New York v. Miln, 36 U.S. (11 Pet.) 102 (1837). 12 Passenger Cases. 13 Massachusetts General Court, House of Representatives, Free Negroes and Mulattoes (Boston, True & Green, 1822), 1. Cambridge Histories Online © Cambridge University Press, 2008 Citizenship and Immigration Law, 1800–1924 179 not already residents of the state. However, over time, the states extended these prohibitions to their own free black residents who sought to return after traveling outside the state either to a disapproved location or to any destination at all. Slave states also often required that manumitted slaves leave the state forever, on pain of re-enslavement. Shortly before the Civil War, several slave states considered forcing their free black populations to choose between enslavement and expulsion, and Arkansas actually passed such legislation. The U.S. Supreme Court repeatedly acquiesced in free and slave states’ attempts to exclude native-born free blacks. For example, in 1853, in Moore v. Illinois, Justice Grier stated, “In the exercise of this power, which has been denominated the police power, a State has a right to make it a penal offence to introduce paupers, criminals or fugitive slaves, within their borders. . . . Some of the States, coterminous with those who tolerate slavery, have found it necessary to protect themselves against the influx either of liberated or fugitive slaves, and to repel from their soil a population likely to become burdensome and injurious, either as paupers or criminals.”14 The larger point here is that, in acquiescing in the states’ efforts to exclude nativeborn free blacks, the Court was also taking a position on native-born free blacks’ status as U.S. citizens. If Chief Justice Taney could state in the Passenger Cases that national citizenship implied a right to travel throughout national territory, to uphold states’ rights to exclude native-born free blacks was tantamount to excluding native-born free blacks from national citizenship. In general, native-born free blacks remained suspended between the status of citizen and alien. Northern courts trod carefully and hypocritically in this area, formally upholding both black citizenship and the discriminatory laws that impaired that status. Their conclusions were ultimately used to justify a denial of free blacks’ national citizenship on the ground that no state actually recognized the full citizenship of free blacks and, therefore, that free blacks could not be members of the national community. This position shaped the United States’ willingness to recognize blacks as its own when they traveled abroad. U.S. Secretaries of State invoked blacks’ lack of full citizenship in Northern states to justify their hesitation in issuing native-born free blacks passports attesting to their U.S. citizenship. In 1839, a Philadelphia black was denied a passport on the ground that Pennsylvania’s denial of suffrage to blacks meant that its blacks were not state citizens, which implied that they could not be U.S. citizens. From 1847 on, the policy was to give blacks special certificates, instead of regular passports. The U.S. Supreme Court’s tortured 1857 decision in Scott v. Sandford merely confirmed this suspension of native-born free blacks between the status of 14 Moore v. Illinois, 55 U.S. (14 How.) 13 (1853) (Grier, J.). Cambridge Histories Online © Cambridge University Press, 2008 180 Kunal M. Parker citizen and alien. According to Justice Taney’s opinion, blacks could not be U.S. citizens by reason of birth on U.S. soil ( jus soli), birth to a citizen father ( jus sanguinis), or naturalization.15 The legal decision to suspend blacks between citizen and alien status should not obscure the range of efforts, private and public, actively to represent native-born free blacks as “Africans” with a view to shipping them back to Africa. Here, the effort was not so much to deny blacks legal citizenship as quite literally to give blacks – but only those who were free – a bona fide foreign identity and place of origin to which they could be removed. Representing itself variously, as the occasion demanded, as both pro-slavery and anti-slavery, the American Colonization Society privately established the colony of Liberia in West Africa, to which it sought to encourage free blacks to return. Slaveholders all over the south conditioned manumission on their slaves’ agreement to depart for Liberia, conditions that were legally upheld. Considerable public support for colonization existed, particularly in the Upper South. Legislatures in Delaware, Maryland, Kentucky, Tennessee, and Virginia all appropriated moneys to facilitate colonization. Maryland’s plan was the most ambitious. In the early 1830s, Maryland appropriated $200,000 to be spent over twenty years to “colonize” manumitted slaves. The legislature ordered county clerks to report all manumissions to a stateappointed Board of Managers for the Removal of Colored People, which instructed the Maryland State Colonization Society to remove the manumitted slave to Africa or any other place deemed suitable. Newly freed blacks wishing to remain in the state could choose re-enslavement or appeal to a county orphan’s court. Those who were unable to obtain court permission and resisted the re-enslavement option might be forcibly transported. Of course, the draconian nature of these laws should not suggest an equally draconian enforcement: Baltimore became a center of free black life in the antebellum years. Given this considerable investment in denying blacks’ legal citizenship and in insisting on their foreignness, it is not surprising that at least some Southern state courts formally assimilated out-of-state free blacks to the status of aliens. This was hardly a common legal position (for the most part, states were satisfied simply to deny blacks’ citizenship), but it is the ultimate illustration of the internal foreignness of native-born free blacks. In the 1859 decision of Heirn v. Bridault, involving the right of a Louisiana free black woman to inherit the property of a white man with whom she had been cohabiting in Mississippi, the Mississippi Supreme Court formally ruled that the woman could not inherit property as an alien. It offered the 15 Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). Cambridge Histories Online © Cambridge University Press, 2008 Citizenship and Immigration Law, 1800–1924 181 following rationale: “[F]ree negroes [who were in Mississippi in violation of law] are to be regarded as alien enemies or strangers prohibiti, and without the pale of comity, and incapable of acquiring or maintaining property in this State which will be recognized by our courts.”16 State-Local Conflicts Over Immigration The constitutional conflict over whether the federal government or the states possessed the legal authority to regulate immigration created an atmosphere of legal uncertainty in which states were left to cope as best they could with the growing tide of immigrants. Antebellum immigration from Europe began in earnest in the 1820s and peaked between the late 1840s and mid-1850s as a result of the Irish famine migration. The migration of the first half of the nineteenth century was largely German and Irish and heavily Catholic. It was directly connected with, indeed indispensable to, the development of capitalism in the North. For the first time, it made sense to refer to an immigrant working class. For the first time as well, there was a highly organized popular nativist movement. Antebellum popular nativism might be characterized as an attempt on the part of white working-class Americans at a time of bewildering change to combat what they perceived as their own increasing disempowerment. Fired by the fear of a vast Catholic conspiracy designed to subvert the Protestant Republic, nativists sought in the first instance to reduce immigrant participation in political life. Anti-immigrant tracts routinely called for lengthening the naturalization period so that immigrants would be properly educated in the ways of republican life before they could vote, checking fraudulent naturalizations, and safeguarding the integrity of the ballot box. Throughout the surge of popular nativism, state-level immigration regimes remained oriented to the exclusion of the poor, although they also targeted immigrants with criminal backgrounds. However, important developments distinguished these state-level immigration regimes from their eighteenth-century predecessors. First, the modalities of territorial restriction were changing. Statutes that had once imposed restrictions on all incoming “persons” with only slight discriminations aimed at aliens gave way to statutes that targeted incoming “alien passengers” alone. Possibly the change registered a growing sense that the right to travel without undue impediment, at least for white Americans, was now one of the “privileges and immunities” secured them by Article IV of the U.S. Constitution. Whatever the reason, the local nature of territorial membership was giving 16 Heirn v. Bridault, 37 Miss. 209, 233 (1859). Cam,bridge Histories Online © Cambridge University Press, 2008 182 Kunal M. Parker way to a sense that (a lack of) national citizenship implied (a lack of ) rights to enter state territories. Second, states engaged in a strategic attempt to terminate resident immigrants’ rights to remain in state territories. Although the applicable poor law regimes continued to provide for the removal of both in-state and out-of-state paupers to their localities or states of origin, the bureaucratic focus was increasingly on “alien paupers.” The aim was explicitly to frighten immigrants into refraining from seeking poor relief for fear that removal would be a consequence of making demands for public assistance. The result was the beginning of a regular, if still small, transatlantic deportation process in the 1830s and 1840s. The creation of a relationship between national citizenship and state territory was accompanied by a change in the kinds of disabilities placed on entering aliens. In the late eighteenth and early nineteenth centuries, shipmasters had been required to post bond in respect of incoming persons with local poor relief officials; these bonds would be acted on should such persons become chargeable to the localities they entered. However, local poor relief officials had often found it difficult to collect on the bonds. Immigrants often changed their names on arrival, which made them impossible to trace. In the 1820s, 1830s, and 1840s, accordingly, there was a shift to a system of outright taxation. In Massachusetts and New York, shipmasters had to pay a tax on all incoming immigrants and to post bond only for incoming immigrants with physical disadvantages. The tax revenues supported a vast network of services for paupers, both immigrant and native. When the Passenger Cases invalidated the Massachusetts and New York head taxes in 1849, states resorted to the stratagem of requiring a bond for all incoming immigrants and offering shipmasters the “option” of commuting bonds for a fee that was the exact equivalent of the head tax. The relationship between national citizenship and state territory was inextricably bound up with the creation of centralized state-level bureaucratic structures that dislodged the local structures that had continued in force since the eighteenth century. Although this history must necessarily be faithful to the legal-institutional arrangements prevailing in the different states, the experience of Massachusetts is illustrative. There, the centralization of control over aliens’ territorial rights and poor relief claims that took place between the late 1840s and mid-1850s was in an immediate sense a response to the Irish famine migration of the same period. But it was also the culmination of growing tensions between the state and the towns over matters of immigration and poor relief. Under the system of territorial restriction and poor relief that had prevailed since the eighteenth century, towns were required to bear the costs of supporting their own poor. However, they were also expected to administer poor relief to those Cambridge Histories Online © Cambridge University Press, 2008 Citizenship and Immigration Law, 1800–1924 183 who had failed to acquire legal residency in any town in the state, a category that included immigrants and out-of-state migrants, on condition of being reimbursed by the state. At the same time, town poor relief officials were entrusted with the responsibility of regulating outsiders’ access to and presence within territory. As immigrant pauperism increased throughout the 1830s and 1840s, Massachusetts sought to reduce the costs of supporting immigrant paupers by instituting a head tax on incoming immigrants and by generating discourses of citizenship that held the claims of immigrant paupers to be essentially illegitimate because they were the claims of aliens. However, the state’s efforts to reduce the costs associated with immigrant pauperism were repeatedly frustrated by the actions of town poor relief officials. Town officials were notoriously lax in enforcing “alien passenger” laws because they knew that immigrant paupers would become the charge of the state rather than of the towns. They also showed a disturbing tendency to cheat the state in their request for reimbursements for supporting immigrant paupers by illegally inflating their reimbursement requests (the towns sought to shift the costs of supporting their own poor onto the state, often by representing native paupers as immigrant paupers). At the height of the Irish famine migration, state officials concluded that they simply could no longer afford the costs associated with town poor relief officials’ excessively narrow view of their own interests that caused them to cheat the state or ignore its laws. The result was that Massachusetts centralized the regulation of immigrants’ access to territory and the administration of poor relief to immigrants in the late 1840s and early 1850s. The Massachusetts experience of centralization shows how the stategenerated discursive link between national citizenship and state territory could be of little concern at the local level. One reason for this persistent local disregard of a state-generated connection between national citizenship and state territory – and of state discourses that sought to demonize the immigrant poor as aliens – was that national citizenship, understood in the sense of a right to poor relief and a right to reside in the community of one’s choice, was still a relatively meaningless category when it came to the treatment of the native poor generally. So long as the native poor were disenfranchised and remained unable to travel throughout national territory as citizens – in other words, so long as the native poor were a species of internal foreigners – local officials would continue to ignore the state-level distinction between the native poor and the immigrant poor. They would treat native paupers much as they treated alien paupers, hounding them out of their towns and localities. Only with the replacement of local control by state control was this problem solved. Cambridge Histories Online © Cambridge University Press, 2008 184 Kunal M. Parker III. THE FEDERAL ERA (1860–1924) In bringing slavery to an end, the CivilWar removed the major impetus for states’ insistence on the right to regulate access to their territories. Statelevel immigration regimes were declared unconstitutional shortly thereafter. 17 The CivilWar also resulted in a clearing up of the variegated antebellum extension of citizenship to the native-born population. In 1868, expressly with a view to overruling the Dred Scott decision, Congress wrote the principle of jus soli or birthright citizenship into the Fourteenth Amendment to the U.S. Constitution, thereby fundamentally reordering the relationship between federal and state citizenship. U.S. citizenship was defined as a matter of a “person’s” birth or naturalization in the United States, with state citizenship following from U.S. citizenship as a function of where U.S. citizens resided. Native-born blacks would never again be suspended between the legal status of citizen and alien or, worse yet, formally assimilated to the status of aliens in certain states. The Architecture of the Federal Immigration Order As U.S. citizenship was formally extended to the entire native-born population and the vestiges of state-level territorial control removed, it began to make sense to conceive of national territory as a space of and for the community of U.S. citizens in a more encompassing way than had been possible in the antebellum period. There were tentative moves toward constitutionalizing the right to travel throughout the nation’s territory as an incident of U.S. citizenship. In 1867, the U.S. Supreme Court struck down a Nevada tax on persons leaving the state by means of public transportation on the ground that national citizenship encompassed the right to travel from state to state.18 Although this decision did not attempt to bring state legal restrictions on the territorial mobility of the native poor to an end, it was the first significant constitutional pronouncement that set the stage for their long decline (a decline that would not be completed before the second half of the twentieth century19). Such developments might be seen as contributing to the emergence of a national immigration regime that could turn its gaze exclusively outward on immigrants. But new forms of internal foreignness emerged coevally with the national immigration regime. Unlike in the antebellum period, 17 Henderson v. Mayor of New York, 92 U.S. 259 (1876); Chy Lung v. Freeman, 92 U.S. 275 (1876). 18 Crandall v. Nevada, 73 U.S. (6 Wall.) 35, 41 (1867). 19 Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322 (1969). Cambridge Histories Online © Cambridge University Press, 2008 Citizenship and Immigration Law, 1800–1924 185 however, they did not get in the way of the development of the national immigration regime; rather, they were often its direct outcome. The targeting of immigrants by race, ethnicity, and national origin blurred the distinction between immigrants and domestic minorities, even as making U.S. citizenship a prerequisite to the enjoyment of various rights, privileges, and benefits introduced various kinds of discrimination into the lived community. If the aftermath of the Civil War resulted in a national immigration regime and the creation of fresh internal foreignnesses, however, the constitutional legacy of the CivilWar also, perhaps unwittingly, limited both the federal and state governments in ways that could sometimes redound to the benefit of immigrants. As national territory was consolidated as a space of and for U.S. citizens, it was also consolidated in theory as a homogeneous space of constitutional rights – transformed, as it were, into a coherent territorial inside. The nature of these constitutional rights was of course not always clear and would be the subject of struggle. Nevertheless, because the Fourteenth Amendment’s language lent its protections explicitly to “persons,” rather than citizens, immigrants on the territorial inside could invoke it against the state. The structure of the new immigration regime is exemplified in the state’s dealings with Chinese immigrants. Chinese had been immigrating to the United States since the late 1840s. Despite the small number of Chinese immigrants, anti-Chinese sentiment in California was intense. Organized white labor in particular saw in the Chinese a dangerous threat to its hardwon standard of living. The question of Chinese access to U.S. citizenship was resolved early against the Chinese. In the aftermath of the CivilWar, Congress had moved to amend the naturalization statute that had hitherto restricted naturalization to “free white persons” so as to make naturalization available to individuals of African descent. In 1870, Senator Charles Sumner of Massachusetts had proposed simply to delete references to “white” in the naturalization law, thereby opening up the possibility of citizenship to all immigrants, but Congressmen from theWestern states had defeated his proposal on the ground that it would permit the Chinese to become citizens. Accordingly, naturalization was extended only to “aliens of African nativity and to persons of African descent.”20 Attorneys subsequently bringing naturalization petitions on behalf of Chinese immigrants argued that the term “white” in the 1870 naturalization law was poorly defined and should be interpreted to include the Chinese. The federal courts disagreed, however, on the ground that a white person was of the Caucasian race and that Chinese were of the 20 Act of July 14, 1870 (16 Stat. 254). Cambridge Histories Online © Cambridge University Press, 2008 186 Kunal M. Parker “Mongolian race.”21 Nevertheless, the Fourteenth Amendment’s embrace of “persons” in its birthright citizenship clause ensured that native-born Chinese would be U.S. citizens. In 1898, despite arguments from the government to the contrary (which suggests that the jus soli principle of the Fourteenth Amendment could be disputed even thirty years after its promulgation), the U.S. Supreme Court held as much.22 Despite the hostility to admitting Chinese into the national community, there had always existed a current of pro-Chinese sentiment growing from appreciation for Chinese labor, on the one hand, and the desire to increase commercial contact with China, on the other. In 1868, the United States and China had signed the Burlingame Treaty, which recognized reciprocal rights of travel “for purposes of curiosity, of trade, or as permanent residents.”23 However, anti-Chinese sentiment in California slowly seeped into national attitudes toward the Chinese. In 1875, as the very first piece of federal immigration legislation, Congress passed the Page Law, aimed at excluding “coolie labor” and Chinese prostitutes.24 As the move to restrict the entry of Chinese became a key issue in the national election of 1880, the United States renegotiated the Burlingame Treaty to give itself the right to “regulate, limit or suspend” the immigration of Chinese laborers whenever their entry or residence in the United States “affects or threatens to affect the interests of that country, or to endanger the good order of [the United States] or of any locality within the territory thereof.”25 Shortly thereafter, in 1882, Congress enacted the first of a series of Chinese exclusion laws suspending the immigration of Chinese laborers.26 For the first time, the United States denied individuals the right to enter the country on the ground of race or nationality. When the Chinese exclusion laws were challenged before the U.S. Supreme Court, the Court articulated for the first time in immigration law what was known as the “plenary power” doctrine. Although it acknowledged that the 1888 exclusion law under challenge was in fact in conflict with the treaty with China, the Court decided that it had no power to curb Congress’s power to exclude aliens, regardless of the injustices inflicted on them. It expressed itself as follows: “The power of exclusion of foreigners being an incident of sovereignty belonging to the government of the United States, as part of the sovereign powers delegated by the Constitution, the 21 In re Ah Yup, 5 Sawyer 155 (1878). 22 United States v. Wong Kim Ark, 169 U.S. 649 (1898). 23 Treaty of July 28, 1868 (16 Stat. 739). 24 Immigration Act of March 3, 1875 (18 Stat. 477). 25 Treaty of November 17, 1880 (22 Stat. 826). 26 Act of May 6, 1882 (22 Stat. 58). Cambridge Histories Online © Cambridge University Press, 2008 Citizenship and Immigration Law, 1800–1924 187 right to its exercise at any time when, in the judgment of the government, the interests of the country require it, cannot be granted away or restrained on behalf of any one.”27 Thus the source of the federal government’s exclusion power – a power that had not been free from doubt as a matter of constitutional law for the entire period up to the Civil War – shifted from antebellum interpretations of the Commerce Clause to an invocation of “sovereignty” that had no explicit grounding in the constitutional text. From its decision to immunize from substantive judicial review the federal power to exclude entering immigrants, the U.S. Supreme Court moved to immunize the federal power to deport resident immigrants. The 1892 Geary Act provided for the deportation of resident aliens. All Chinese laborers living in the United States were required to obtain a “certificate of residence” from the Collector of Internal Revenue within one year of the passage of the Act. Under regulations promulgated pursuant to the 1892 Act, the government would issue a certificate only on the “affidavit of at least one credible [white] witness.” Any Chinese alien who failed to obtain the certificate could be “arrested . . . and taken before a United States judge, whose duty it [was] to order that he be deported from the United States.”28 The Geary Act sparked a non-compliance campaign led by the Chinese Six Companies, the leading Chinese immigrant organization of the day. However, when the Six Companies set up a test case that reached the U.S. Supreme Court, they met defeat. The Court declared that “[t]he right of a nation to expel or deport foreigners, who have not been naturalized or taken any steps towards becoming citizens of the country, rests upon the same grounds, and is as absolute and unqualified as the right to prohibit and prevent their entrance into the country.” Even worse, the Court ruled that deportation “is not a punishment for a crime,” but only “a method of enforcing the return to his own country of an alien.” The implication of interpreting deportation as a civil, rather than a criminal, sanction was that the deported alien was not entitled to the constitutional protections ordinarily applicable in criminal proceedings.29 The very harshness of the plenary power doctrine led to the invigoration of two different sets of legal principles that are a hallmark of modern immigration law; namely, the territorial inside/outside distinction and the procedure-substance distinction.With respect to the territorial inside/ outside distinction, the U.S. Supreme Court made it clear that the Fourteenth Amendment to the U.S. Constitution protected all “persons” who 27 Chinese Exclusion Case (Chae Chan Ping v. United States), 130 U.S. 581 (1889). 28 Chinese Exclusion Act of May 5, 1892 (27 Stat. 25). 29 Fong Yue Ting v. United States, 149 U.S. 698 (1893). Cambridge Histories Online © Cambridge University Press, 2008 188 Kunal M. Parker happened to be on the territorial inside from certain kinds of actions by the federal and state governments (including discriminatory legislation by state governments that the Court deemed a violation of the Equal Protection Clause).30 It is important to note, however, that this constitutional commitment to protecting all “persons” who happened to be inside U.S. territory did not reach the federal government’s “plenary power” to exclude and deport on the basis of race. The procedure-substance distinction was the subject of regular struggle between the federal government and Chinese immigrants. As the federal government’s substantive power to exclude and deport aliens was progressively immunized from judicial review under the “plenary power” doctrine, Chinese immigrants’ strategies focused increasingly on procedural issues. The battle between the state and Chinese immigrants over procedure is significant because it reveals how the state consistently sought, through manipulation of its emerging administrative forms, to blur the distinction between citizen and alien in its efforts to exclude and remove Chinese. From the beginning, the Chinese community in San Francisco had been adept in seeking out judicial assistance to curb the excesses of overzealous immigration officials. Despite federal judges’ stated opposition to Chinese immigration, they often tended to use their habeas corpus jurisdiction to overturn immigration officials’ decisions to exclude Chinese immigrants, thereby leading to considerable tension between the courts and the bureaucrats, with the latter accusing the former of subverting the administration of the Chinese exclusion laws. The success of Chinese immigrants in using courts to curb the excesses of immigration officials eventually led Congress to pass laws that endowed administrative decisions with legal finality. Immigration restriction thus became one of the key sites for the emergence of the administrative state. In 1891, dissatisfied with the state bureaucracies that had been administering federal immigration laws, Congress passed a new immigration law that abrogated contracts with state boards of immigration and created a federal superintendent of immigration who would be subject to review by the secretary of the treasury.31 The 1891 act also made decisions of immigration inspection officers final. Appeals could be taken to the superintendent of immigration and then to the secretary of the treasury. Thus, judicial review of administrative decisions was eliminated for entering immigrants. In 1891, when a Japanese immigrant who was denied admission on the ground that she would become a public charge challenged the procedural 30Yick Wo v. Hopkins, 118 U.S. 356 (1886); Wong Wing v. United States, 163 U.S. 228 (1896). 31 Immigration Act of March 3, 1891 (26 Stat. 1084). Cambridge Histories Online © Cambridge University Press, 2008 Citizenship and Immigration Law, 1800–1924 189 arrangements of the 1891 act as a denial of due process, the U.S. Supreme Court dismissed her claims.32 The principle of judicial deference to administrators led to a blurring of the distinction between citizens and aliens, and thence to the constitution of the internal foreignness of Chinese immigrants. Of immediate concern to administrators was the strategy adopted by the attorneys of Chinese immigrants of taking admission applications of Chinese alleging to be native-born citizens directly to the courts – and thereby bypassing administrators – on the ground that the exclusion laws and the administrative remedies they envisioned were applicable only to aliens (and not to citizens). The U.S. Supreme Court weighed in for the government. In In re Sing Tuck, a case involving Chinese applicants for admission who claimed to be citizens, the Court ruled that such applicants must exhaust their administrative remedies as provided by the exclusion laws before being able to turn to the courts. Although the court refrained from deciding whether administrative officers had jurisdiction to determine the fact of citizenship, the dissenters recognized that the implication of the decision was to blur the distinction between citizen and alien and that the decision ultimately rested on a racialized notion of who might legitimately claim U.S. citizenship. As Justice Brewer put it, with Peckham concurring, “Must an American citizen, seeking to return to this his native land, be compelled to bring with him two witnesses to prove the place of his birth or else be denied his right to return and all opportunity of establishing his citizenship in the courts of his country? No such rule is enforced against an American citizen of Anglo-Saxon descent, and if this be, as claimed, a government of laws and not of men, I do not think it should be enforced against American citizens of Chinese descent.”33 A year later, the Court went further. In United States v. Ju Toy, it held that the administrative decision with respect to admission was final and conclusive despite the petitioner’s claim of citizenship. Justice Holmes stated that, even though the Fifth Amendment might apply to a citizen, “with regard to him due process of law does not require a judicial trial.”34 Not surprisingly, after the Ju Toy decision, habeas corpus petitions filed by Chinese applicants for admission in the Northern District of California dropped dramatically, from a total of 153 cases filed in 1904, to 32 in 1905, to a low of 9 in 1906. In subsequent years, after criticism of the Bureau of Immigration and its own decisions, the Court scaled back the harshness of the Ju Toy decision by requiring in the case of a Chinese American applicant 32 Nishimura Ekiu v. United States, 142 U.S. 651, 660 (1891). 33 United States v. Sing Tuck, 194 U.S. 161, 178 (1904). 34 198 U.S. 253 (1905). Cambridge Histories Online © Cambridge University Press, 2008 190 Kunal M. Parker for admission who alleged citizenship that the administrative hearing meet certain minimum standards of fairness.35 However, this last decision appears to have had little impact on administrative practice. The blurring of the difference between citizen and alien at the procedural level suggests one of the important ways in which the national immigration regime produced internal foreignness in the late nineteenth and early twentieth centuries. If the Fourteenth Amendment had made it impossible to take U.S. citizenship away from native-born Chinese as a matter of substantive law (albeit not for want of trying), immigration officials could do so as a matter of procedural law. In being denied judicial hearings, nativeborn Chinese were assimilated to the status of Chinese aliens. Bureaucratic prejudice could keep certain Americans from entering and hence residing in the country in which they had been born. This is perfectly consistent with the view of Bureau of Immigration officials, who viewed native-born Chinese as “accidental” or “technical” citizens, as distinguished from “real” citizens. The denial of adequate procedure as a means of blurring the distinction between citizen and alien was only one of the ways of producing the internal foreignness of the Chinese. The harshness of the exclusion and deportation laws applicable to the Chinese and the general paranoia about the legality of the Chinese presence translated into a range of legal and administrative measures that forced the Chinese American community to live for decades in perpetual fear of American law enforcement officials. Anti-Chinese sentiment had, of course, resulted in various kinds of discrimination since the middle of the nineteenth century. But now the immigration regime itself spilled into the community. Starting in 1909, for example, all persons of Chinese descent – including U.S. citizens – were required to carry certificates identifying them as legally present in the country.36 As deportation increasingly became a tool for regulating Chinese presence in the early twentieth century, Chinese communities all over the United States were repeatedly subjected to what has since become a tested method of ferreting out “illegal aliens” and of impressing on certain kinds of citizens their lack of belonging – the immigration raid, with all the possibilities of intimidation and corruption that it carried. By 1905, the restrictionist focus had shifted far beyond the Chinese. However, the legal struggles of Chinese immigrants had brought about an articulation of the major principles of the federal immigration order. These might be listed as follows: racialized citizenship, plenary congressional power over the exclusion and deportation of immigrants as an incident 35 Chin Yow v. United States, 208 U.S. 8 (1908). 36 U.S. Dept. of Commerce and Labor, Bureau of Immigration, Treaty, Laws, and Regulations (1910), 48–53. Cambridge Histories Online © Cambridge University Press, 2008 Citizenship and Immigration Law, 1800–1924 191 of “sovereignty,” broad judicial deference to administrative decisions, and the legal production of the internal foreignness of disfavored immigrant groups. Shaping the Community and Closing the Golden Door In the 1870s and 1880s, domestic capital clearly recognized the advantages of unrestricted immigration in driving down wages and reducing the bargaining power of organized labor. Andrew Carnegie put it thus in 1886: “The value to the country of the annual foreign influx is very great indeed. . . . During the ten years between 1870 and 1880, the number of immigrants averaged 280,000 per annum. In one year, 1882, nearly three times this number arrived. Sixty percent of this mass were adults between 15 and 40 years of age. These adults were surely worth $1,500 each – for in former days an efficient slave sold for this sum.”37 Organized labor had long been calling for immigration restriction to protect American workers from the competition posed by immigrant labor. However, because it was politically untenable to shut down European, as opposed to Asian, labor migration in its entirety, organized labor increasingly focused on the issue of “contract labor.” In an ironic twist to the ideologies of freedom of contract that dominated the post–CivilWar years, the immigrant who entered the United States with a transportation contract was represented as someone who had been “imported” by capitalists and, therefore, as someone who was less free and more threatening than the immigrant who came in without a contract. Congress responded in 1885 with the first of the contract labor laws. The 1885 Act prohibited employers from subsidizing the transportation of aliens, voided transportation contracts, and imposed fines on violators.38 The legislation, however, proved to be purely symbolic. In the first place, the practice of paying for the transportation of laborers, which had been prevalent in antebellum years when the need for skilled laborers was great, had largely died out by the late nineteenth century (when family-based migration served capital’s need for fungible unskilled labor). Second, enforcement of the laws appears to have been cursory and ineffective. Between 1887 and 1901, at most 8,000 immigrants were barred under the alien contract labor laws out of a total immigration flow of about 6,000,000. In 1901, a congressional Industrial Commission concluded that the laws were “practically 37 Andrew Carnegie, Triumphant Democracy, or Fifty Years’ March of the Republic (New York: Charles Scribner’s Sons, 1886), 34–35. 38 Act of February 26, 1885 (23 Stat. 332). A second act provided for the deportation of any contract laborer apprehended within one year of entry. Act of October 19, 1888 (25 Stat. 566). Cambridge Histories Online © Cambridge University Press, 2008 192 Kunal M. Parker a nullity, as affected by the decisions of the court, and by the practices of the inspectors, and the administrative authorities.”39 As the national immigration regime consolidated itself, the number of grounds of exclusion grew by leaps and bounds. The anxieties that the state expressed in its exclusion laws were typical of the punitive, moralizing, reformist, and eugenicist mood of the late nineteenth and early twentieth centuries. The exclusion of those “likely to become a public charge,” a provision enacted in 1882 and based on antebellum state statutes, became the most important ground of barring entry into the United States.40 Generations of immigrants learned to wear their finest clothes at the moment of inspection to convey an impression of prosperity. Closely related were the laws restricting the admission of aliens with physical and mental defects, including epileptics and alcoholics, which drove prospective entrants to attempt to conceal limps and coughs. There were also laws targeting individuals with criminal backgrounds (including those convicted of crimes involving “moral turpitude”), polygamists, and women coming to the United States for “immoral purposes.”41 Finally, after the assassination of President McKinley in 1901, the immigration laws began actively to penalize aliens for their political beliefs.42 However, the heart of the debate over immigration restriction in the early twentieth century lay not in the protection of the labor market, public finances, public morals, or the polity itself, but rather in something that stood in the popular mind for all of these together; namely the protection of the country’s ethnic/racial stock. Increasingly, the race of immigrants was coming to do the work of “explaining” the class tensions, labor unrest, and urban violence that afflicted late nineteenth- and early twentieth-century America. One should refrain from easy generalizations about the sources of the racial theories that were increasingly marshaled to demonize the new immigrants, who came increasingly from Southern and Eastern Europe, as well as more distant countries such as Japan and India. European Americans had access to their rich “internal” experiences with racialized others, to be sure, but also to earlier experiences with Irish and Chinese immigrants, not to mention to the fund of racial thinking that had accompanied the centuries-long European colonial experiences in Europe, Asia, Africa, and the Americas. All of these sources fed into the new “scientific” racial 39 U.S. Congress, House, Industrial Commission, 1901, Vol. 15, p. lviii. 40 Immigration Act of August 3, 1882 (22 Stat. 214). 41 Act of March 3, 1875 (18 Stat. 477); Immigration Act of March 3, 1891 (26 Stat. 1084); Immigration Act of February 20, 1907 (34 Stat. 898). 42 Immigration Act of March 3, 1903, (32 Stat. 1203, Section 2). Cambridge Histories Online © Cambridge University Press, 2008 Citizenship and Immigration Law, 1800–1924 193 sensibilities and knowledges of the late nineteenth and early twentieth centuries. The fear of the “race suicide” of “Nordics” resulting from the introduction of more prolific “inferior races,” an idea propagated energetically by the Eastern-elite-dominated Immigration Restriction League, acquired considerable currency after 1900. The massive report on immigration submitted to Congress by the Dillingham Commission (1910–11) shared this general sensibility by considerately including a Dictionary of Races or Peoples. The Dictionary exemplified the new “scientific” understanding of race; in classifying immigrants “according to their languages, their physical characteristics, and such marks as would show their relationship to one another, and in determining their geographical habitats,” the Commission identified dozens of carefully hierarchized “races” of immigrants.43 Predictably, the most virulent attacks were reserved for Asian immigrants in theWest. By 1905, the Asiatic Exclusion League had been organized to bar the new immigration from Japan and India. Attempts to segregate San Francisco schools sparked a diplomatic crisis between Japan and the United States, resulting in the Gentlemen’s Agreement of 1907, according to which Japan agreed voluntarily to restrict the immigration of Japanese laborers. The Asiatic Exclusion League also lobbied fiercely for the exclusion of Indian immigrants, erroneously labeled “Hindoos.” In the absence of any statutory provision explicitly prohibiting the entry of Indians, motivated administrators put generally applicable provisions of immigration law to creative racist ends. Immigration officials began to interpret the “public charge” provision to exclude Indian immigrants on the ground that strong anti-Indian prejudice in California would prevent them from getting a job, and thus render them “public charges.” When this discriminatory use of the “public charge” provision was challenged in federal court, it was upheld.44 The increasing racialization of immigration law had especially adverse effects on female immigrants. In general, the immigration law of the period reinforced patriarchal ideas about gender roles. As an observer noted in 1922: “In the main, in the eyes of the law, a man is man, while a woman is a maid, wife, widow, or mother.”45 This made single or widowed female immigrants especially vulnerable to aspects of immigration law such as the 43 Dillingham Commission Report, Vol. 5, Dictionary of Races or Peoples, Senate Document 662, Session 61–3 (Washington, DC: Government Printing Office, 1911), 2. 44 In re Rhagat Singh, 209 F. 700 (1913). The U.S. Supreme Court eventually curtailed immigration officials’ excessively broad interpretations of the “public charge” provision in Gegiow v.Uhl, 239 U.S. 3 (1915). 45 “The Cable Act and the Foreign-BornWoman,” Foreign Born 3, no. 8 (December 1922). Cambridge Histories Online © Cambridge University Press, 2008 194 Kunal M. Parker public charge provisions. But the consequences were worse yet for racialized immigrants. Chinese women had long experience with such attitudes. In a bow to patriarchal attitudes, the ban on Chinese immigration did not translate into a prohibition on the entry of wives. However, widespread American stereotypes about Chinese prostitutes made Orientalist markers of matrimony and class status – for example, bound feet suggesting the lack of need to work – crucial for a Chinese woman hoping to secure admission. Any evidence that the woman had worked might result in her classification as a crypto-laborer and her being denied entry. Fears about prostitution translated into greater interrogation and surveillance of Japanese, as well as Eastern and Southern European female immigrants. The Dillingham Commission devoted an entire volume to “white slavery” and sought to match its findings to the racial characteristics of the immigrant stream. Jewish women were seen as being especially vulnerable to the lure of prostitution once they had been admitted.46 In the early twentieth century, as the composition of the immigrant population changed, courts were compelled to confront once again the question of racial ineligibility for U.S. citizenship. Although the Chinese had been declared ineligible since the 1870s, there was considerable ambiguity as to whether Japanese, Indian, and other immigrants who entered the United States in the late nineteenth and early twentieth centuries fit within the black-white binary of naturalization law. Between 1887 and 1923, the federal courts heard twenty-five cases challenging the racial prerequisites to citizenship, culminating in two rulings by the U.S. Supreme Court: Ozawa v. United States (1922) and Thind v. United States (1923). In each case, the Court’s decision turned on whether the petitioner could be considered a “white person” within the meaning of the statute. Taken together, these decisions reveal the shortcomings of racial science. In earlier years, federal courts had relied on racial science, rather than on color, and had admitted Syrians, Armenians, and Indians to citizenship as “white persons.” In Ozawa, the U.S. Supreme Court admitted that color as an indicator of race was insufficient, but resisted the conclusion that no scientific grounds for race existed. It avoided the problem of classification by asserting that “white” and Caucasian were the same and that the Japanese were not Caucasian and hence not “white.”47 However, in Thind, the Court was confronted with an Indian immigrant who argued his claim to eligibility to citizenship on the basis of his Aryan and Caucasian roots. 46 Dillingham Commission Report, Vol. 37, pt. 2, Importation and Harboring of Women for Immoral Purposes, Senate Document 753/2, Session 61–3 (Washington, DC: Government Printing Office, 1911). 47 Ozawa v United States, 260 U.S. 128, 197 (1922). Cambridge Histories Online © Cambridge University Press, 2008 Citizenship and Immigration Law, 1800–1924 195 Now the Court found that the word “Caucasian” was considerably broader in scientific discourses than it was in non-scientific discourses. Rejecting the petitioner’s claim to citizenship, it held that the words “white person” in the naturalization law were words of “common speech, to be interpreted with the understanding of the common man.”48 Racial science thus was summarily abandoned in favor of popular prejudice. If U.S. citizenship was racialized during this period, it was also deeply gendered. Since the middle of the nineteenth century, male U.S. citizens had been formally able to confer citizenship on their wives. However, the law with respect to female U.S. citizens who married non-citizens had been unclear. In 1907, Congress decided to remove all ambiguities by legislating “that any American woman who marries a foreigner shall take the nationality of her husband.”49 In other words, female U.S. citizens who married noncitizens were not only unable to confer citizenship on their husbands, but in fact lost their own U.S. citizenship as a consequence of their marriage. In 1915, the U.S. Supreme Court upheld a challenge to this provision on the basis of the “ancient principle” of “the identity of husband and wife.”50 In the case of native-born Asian American female citizens, this law had the effect of rendering them permanently unable to reenter the community of citizens. Having lost their citizenship on marrying an alien, they became aliens racially ineligible for citizenship. But quite in addition to being racialized and gendered, U.S. citizenship revealed that it had adventitious uses. It could be shaped and manipulated as a weapon of discrimination. As anti-immigrant sentiment mounted in the early twentieth century, state legislatures increasingly made U.S. citizenship a prerequisite to forms of employment and recreation, access to natural resources, and the like, thereby causing the meanings of U.S. citizenship to proliferate well beyond the sphere of the political (voting, political office, service on juries, and so on). Driven by the politics of race and labor, citizenship thus spilled into the social experiences of work and leisure in the lived community. State attempts to discriminate on the basis of citizenship were typically dealt with as problems of “alienage law.” The constitutional question was whether a state, in discriminating on the basis of citizenship, had gone so far as to intrude on the federal government’s (by now) exclusive immigration power. In general, the U.S. Supreme Court held that a state could discriminate among citizens and aliens if the state was protecting a “special public interest” in its common property or resources, a category that was 48 Thind v. United States, 261 U.S. 204, 215 (1923). 49 Act of March 2, 1907 (34 Stat. 1228). 50 Mackenzie v. Hare, 239 U.S. 299, 311 (1915). Cambridge Histories Online © Cambridge University Press, 2008 196 Kunal M. Parker interpreted over the years to include employment on public works projects, hunting wild game, and operating pool halls.51 The U.S. Supreme Court also upheld alienage distinctions that were aimed very clearly and directly at specific racialized immigrant groups. In the early twentieth century, resentment of Japanese immigrants on the West Coast increasingly centered on their success in agriculture. In response, Arizona, California, Idaho, Kansas, Louisiana, Montana, New Mexico, and Oregon attempted to restrict land ownership by aliens “ineligible to citizenship,” a category carefully crafted to apply only to Asian immigrants, who were the only ones legally incapable of naturalizing. When the alien land laws were challenged, however, the U.S. Supreme Court upheld them.52 The fact that the legislation only affected some racialized groups was not found to be a problem under the Equal Protection Clause of the Fourteenth Amendment because the law was framed in neutral terms of discrimination against non-citizens. If the Chinese experience with citizenship had prefigured other Asian immigrant groups’ experiences with citizenship, the events of the 1920s revealed that the Chinese experience with blanket immigration restriction also prefigured the experience of Asian and European immigrant groups. Significant restrictions on immigration occurred only with the xenophobic frenzy whipped up duringWorldWar I. The context of suspicion fostered by the war enabled nativists to obtain in the Immigration Act of 1917 some of the restrictionist policies they had long advocated. A literacy test for adult immigrants was one of their most important victories. The 1917 law also submitted to theWest Coast’s demand for the exclusion of Indian immigrants. Hesitant to single Indians out for exclusion on the grounds of race, however, Congress created an “Asiatic Barred Zone” that included India, Burma, Siam, the Malay States, Arabia, Afghanistan, parts of Russia, and most of the Polynesian Islands.53 In the end, it is unclear how much the literacy test affected European immigration, in part because of the spread of literacy in Europe during the same years. 51 Crane v. New York, 239 U.S. 195 (1915); Patsone v. Pennsylvania, 232 U.S. 138 (1914); Clarke v. Deckebach, 274 U.S. 392 (1927). However, the U.S. Supreme Court did strike down an Arizona law that required any employer of more than five employees to employ at least 80 percent qualified electors or native-born citizens of the United States on the ground that it would be inconsistent with the exclusive federal authority to “admit or exclude aliens.” Truax v. Raich, 239 U.S. 33 (1915). 52 Truax v. Corrigan, 257 U.S. 312, cited in Terrace v. Thompson, 263 U.S. 197, 218, 221 (1923). 53 Immigration Act of February 5, 1917 (39 Stat. 874). Cambridge Histories Online © Cambridge University Press, 2008 Citizenship and Immigration Law, 1800–1924 197 By 1920, the war-boom economy had begun to collapse and immigration from Europe had revived, creating a propitious environment for greater restriction. Accordingly, in 1921, the logic of immigration restriction that had been formally applicable to almost all Asian immigrants since 1917 – exclusion – was extended to European immigrants, albeit in the form of quotas rather than complete restriction. The Quota Act of 1921 was described by the commissioner general of immigration as “one of the most radical and far-reaching events in the annals of immigration legislation.”54 Indeed it was, but what is of interest here is its arbitrariness. The Quota Act limited European immigration to 3 percent of the number of foreign-born people of each nationality residing in the United States in 1910.55 The aim was to give larger quotas to immigrants from Northern and Western Europe, and to reduce the influx of Southern and Eastern Europeans. By 1923, the commissioner general of immigration pronounced the Quota Act a success. He revealed that the percentage of Southern and Eastern European immigrants had decreased from 75.6 percent of the total immigration in 1914 to 31.1 percent of the total immigration in 1923. For the same years, as a percentage of total immigration, immigration from Northern and Western Europe had increased from 20.8 percent to 52.5 percent. This change in the composition of the immigration stream did not, however, satisfy nativists. The Immigration Act of 1924 represented a compromise. It reduced the percentage admitted from 3 to 2 percent and made the base population the number of each foreign-born nationality present in the United States in 1890 instead of 1910. The Senate, balking at such gross discrimination, allowed the new quota provided that a new “national origins” test would be used beginning in 1927. The new national origins test was only superficially fairer. It placed a cap on the total number of immigrants, limiting admissions to 150,000 each year and using the 1920 census as the base. However, instead of using the number of foreign-born as its measure, as the earlier quota laws had done, the law set the quotas according to the proportion of each “national stock,” including both native and foreign-born people. This favored “old stock” Americans over the new immigrant population, leaving to immigration officials the nightmare of calculating “national stocks.” The 1924 Act also furthered the exclusion of Asians. Though the law barred such aliens from entering the country as were, to use the euphemistic phrase of the time, “ineligible for citizenship,” Japanese immigrants were 54 Annual Report of the Commissioner-General of Immigration, 1921, 16. 55 Act of May 19, 1921 (42 Stat. 5). Cambridge Histories Online © Cambridge University Press, 2008 198 Kunal M. Parker the real targets of the act because Chinese and Indian immigrants had already been excluded.56 Thus, in the 1920s, for the first time in the history of immigration restriction in the United States, the basic theory of exclusion shifted from a matter of the shortcomings of the individual immigrant (poverty, criminal background, health, etc.) to a matter of numerical restriction. Decisions to admit immigrants and the battles that accompanied them would take place in the abstract language of numbers. Of course, the grounds of exclusion for poverty, disability, criminal background, political opinion, and the like would continue in force, but these would henceforth serve to weed out individuals who had first to demonstrate that they fit within a national origins ,quota. The presumption that one could immigrate to the United States had shifted to a presumption that one could not immigrate to the United States.With this shift in presumptions came the figure of the “illegal alien” and a vast stepping up of border control and deportation activity. For the first time, Congress legislated a serious enforcement mechanism against unlawful entry by creating a land Border Patrol.57 Imperialism and Immigration If the growth of the national immigration regime resulted in the production of the internal foreignness of American ethnic communities like the Chinese, the history of immigration from areas in which the United States had colonial/imperial involvements reveals how groups once treated as on the inside could progressively be rendered as on the outside and progressively brought within the purview of the immigration regime. Although immigration statistics for the early twentieth century are notoriously inaccurate, scholars estimate that at least one million and possibly as many as a million and a half Mexican immigrants entered the United States between 1890 and 1929. Mexico has also been the single most important source country for immigration into the United States in the twentieth century. However, it is not simply the numbers of Mexican immigrants, but the peculiar history of Mexican immigration as one intertwined with colonialism that warrants separate treatment. With the Treaty of Guadalupe Hidalgo in 1848, Mexico ceded to the United States more than half of its territory, comprising all or part of 56 Immigration Act of 1924 (43 Stat. 153). Filipinos were the only Asians unaffected by the 1924 Act. As non-citizen U.S. nationals by virtue of their colonial status, Filipinos were exempt from the law. Their immigration to the United States became restricted in 1934. 57 Act of February 27, 1925 (43 Stat. 1049). Cambridge Histories Online © Cambridge University Press, 2008 Citizenship and Immigration Law, 1800–1924 199 present-day Arizona, California, Colorado, Kansas, Nevada, New Mexico, Oklahoma, Texas, Utah, and Wyoming. This treaty also transformed the lives of the estimated 75,000 to 100,000 Mexicans who lived in the ceded territories. It expressly provided that Mexicans could move south of the new international border or retain their Mexican nationality. If they had done neither within one year of the treaty’s effective date, however, they would be considered to have “elected” to become citizens of the United States.58 The treaty’s extension of U.S. citizenship by fiat to the resident populations of the ceded territories might have been the ironic consequence of a State Department bureaucrat’s unsanctioned negotiations in Mexico City. However, Americans disturbed by the prospect of admitting their racial “inferiors” into the community of U.S. citizens (it should be recalled that the treaty was negotiated almost a decade before the Dred Scott decision) were comforted by the belief that the acquired territories were sparsely settled and would be transformed by white migration. Mexican Americans were confidently expected to disappear as a significant presence in the newly acquired area. Massive white immigration into the acquired territories during the second half of the nineteenth century indeed had the effect of rendering Mexican Americans numerical minorities, even as they experienced a sharp loss in social, economic, and political power and became victims of racial discrimination as non-whites. By the end of the nineteenth century, however, this demographic situation began to change. A range of transformations – the extension of railway networks, the introduction of the refrigerated boxcar, the construction of irrigation projects, and so on – laid the foundation for explosive economic growth in the American Southwest, and hence for the region’s seemingly limitless demand for agricultural and industrial labor. These changes took place just as conditions for Mexican peasants were worsening during the waning years of the nineteenth century. As a result, Mexicans began to pour into the Southwest. At a time of rising nativism in the United States vis-`a-vis European and Asian immigrants, it was precisely the colonial context of the acquisition of the Southwest and the rhetorical uses to which it was put by labor-hungry U.S. employers that saved Mexican immigrants, at least for a while, from being formal targets of U.S. citizenship and immigration laws. In 1897, a federal district court considering the question of Mexicans’ eligibility for citizenship declared that “[i]f the strict scientific classification of the anthropologist should be adopted, [the petitioner] would probably not be classed as white.” However, the constitution of the Texas Republic, the 58 Treaty of Guadalupe Hidalgo, Article VIII. Cambridge Histories Online © Cambridge University Press, 2008 200 Kunal M. Parker Treaty of Guadalupe Hidalgo, and other agreements between the United States and Mexico either “affirmatively confer[red] the rights of citizenship upon Mexicans, or tacitly recognize[d] in them the right of individual naturalization.” Furthermore, because these instruments had not distinguished among Mexicans on the basis of color, all Mexicans would be eligible to naturalize, regardless of color.59 Thus, the United States’ obligations to its colonized Mexican American population redounded to the benefit of Mexican immigrants. Mexicans were also exempted from racial bars to immigration applicable to Asian immigrants and the quotas applicable to European immigrants from the 1920s on. Here, the reason seems to have been successful lobbying by Western and Southwestern interests to keep the border open. Once again, the history of Mexicans’ relationship to the Southwest was invoked. By far the most influential arguments in favor of Mexican immigrants promoted the idea that history had rendered Mexican immigrants familiar – yet happily, temporary – sojourners in the United States. In 1926, Congressman Taylor of Colorado noted that Americans had become used to working with Mexicans after nearly a century of contact. “It is not at all like we were importing inhabitants of a foreign country. We understood each other. They have no influence whatever upon our habits of life or form of civilization. They simply want work. . . . Generally speaking they are not immigrants at all. They do not try to buy or colonize our land, and they hope some day to be able to own a piece of land in their own country.”60 The idea that Mexican immigrants were birds of passage was cited repeatedly to assuage nativists’ fears that Mexicans might settle permanently in the United States. Eventually, however, Mexican immigrants would also fall victim to the restrictionist tide, especially because Mexicans disappointed Americans by inconveniently remaining in the communities in which they labored. By the mid-1920s, a Mexican “race problem” had emerged in the Southwest. Although Congress was unwilling to impose quotas on Mexican immigration or to exclude Mexicans on racial grounds, it sought to restrict Mexican immigration by administrative means. U.S. consuls in Mexico began to enforce general immigration restrictions, refusing visas to Mexican laborers. At the same time, the formation of the Border Patrol in 1925 led to the first steps to curb Mexican illegal immigration. The official onslaught against Mexican immigrants reached its peak during the 1930s when officials of the U.S. Department of Labor, the Border Patrol, local welfare 59 In re Rodriguez, 81 Fed. 337 (W.D. Texas, 1897). 60 Ralph Taylor, in House Committee On Immigration, Immigration from Countries of theWestern Hemisphere: Hearings, 1930, 237–38. Cambridge Histories Online © Cambridge University Press, 2008 Citizenship and Immigration Law, 1800–1924 201 agencies, and other government bodies sought to secure the “voluntary” return to Mexico of Mexican immigrants and their U.S. citizen children. Scholars have estimated that between 350,000 and 600,000 individuals were thus repatriated to Mexico. The other immigration streams shaped by an imperial context were those from the Philippines and Puerto Rico, territories acquired as a consequence of the Spanish American War in 1898. But the late nineteenth-century moment was very different from the mid-nineteenth-century moment of the acquisition of the Southwest. In the high noon of racial theory, there were real doubts about Americans’ ability effectively to ingest these noncontiguous territories and their racially distinct populations. Puerto Rico was clearly the more ingestible of the two; its population numbered less than one million. Accordingly, in the Jones Act of 1917, Congress enacted a bill of rights for Puerto Rico and granted U.S. citizenship to Puerto Ricans.61 This was not the full membership enjoyed by Americans on the mainland. Nevertheless, as a consequence of the Jones Act, Puerto Ricans could move to the mainland United States and, on becoming state residents, claim the civil, political, and social rights enjoyed by other citizens. The case of the Philippines was more troublesome. If American territorial acquisitions in earlier periods had been premised on territories’ eventual admission to statehood, admitting the populous Philippine islands to statehood was unthinkable. The Filipino nationalist leader Manuel Roxas once remarked that statehood would have resulted in fifty Filipino representatives in Congress. Nevertheless, “benevolent” imperialism came with a price. If they were not U.S. citizens, Filipinos were at least “American nationals.” As “American nationals,” Filipinos were exempted from the quota acts and were able to enter and reside within the United States. Not surprisingly, nativists in the 1920s sought to close the loopholes in immigration law that allowed Filipinos to enter the United States. However, because there was a sense in Washington that the anti-Filipino movement was merely a regional interest, Congress initially failed to act. Eventually, the desire to exclude Filipinos grew so great that exclusionists actually allied themselves with Filipino nationalists. They finally proved successful. The Tydings-McDuffie Act of 1934 granted the Philippines independence and stripped Filipinos of their status as “American nationals.”62 Filipino immigration became governed by the national origins quota legislation. A 1935 Repatriation Act sought to remove Filipinos from the United States by paying their transportation back to the Philippines on condition that they give up any right of reentry into the country. 61Act of March 1, 1917 (39 Stat. 951). 62Act of March 22, 1934 (48 Stat. 456). Cambridge Histories Online © Cambridge University Press, 2008 202 Kunal M. Parker CONCLUSION The attempt by petitioners in Ozawa and Thind to obtain classification as “white” rather than as “African” for purposes of naturalization law reveals a great deal about how nineteenth- and twentieth-century immigrants, European and Asian, attempted to fit themselves into American racial hierarchies. Racial jostling on the part of immigrants has a long history, punctuated by dramatic and violent events such as the 1863 New York City draft riots when Irish immigrants lynched African Americans to protest their own conscription into the Union effort. The rise of the national immigration regime was premised on the removal of the structural internal foreignnesses of the antebellum period and the constitution of U.S. territory as a homogeneous space of constitutional rights. It translated, as has been suggested, into a fresh set of internal foreignnesses as the immigration regime spilled over into the lived community in the form of immigration raids and heightened surveillance of American ethnic communities such as the Chinese. However, the late nineteenth century also witnessed the emergence of another form of internal foreignness: legally sanctioned, public and private, formal and informal racial segregation. Perhaps this was not of the same legal order as the efforts of states in the antebellum period to exclude portions of the native-born population – free blacks – from their territories and to assimilate them to the formal status of aliens. The passage of the CivilWar amendments had made such kinds of discrimination illegal. Nevertheless, in the decades that followed the Civil War, courts permitted other, newer kinds of discrimination and segregation through the reinvigoration of the public/private distinction or the spurious idea of “separate but equal.”63 By the early twentieth century, then, a multitude of internal spaces in America – whether they involved shopping or transportation, residence or recreation, employment or education – were thoroughly fragmented, rendered open to some groups and closed to others. Closing off such spaces was especially significant because it was precisely in the variegated spaces of the new urban America that social membership would increasingly be instantiated and realized. Although immigrant groups such as Jews and Catholics, Asians and Latinos, were certainly victims of forms of segregation, its greatest impact was on African Americans. The boundaries of spaces closed off to African Americans were actively patrolled through public laws and policies, judicially recognized private devices such as the racially restrictive covenant or the shopkeeper’s absolute “right to exclude,” the efforts of police and vigilantes, and the systematic 63 Plessy v. Ferguson, 163 U.S. 537 (1896). Cambridge Histories Online © Cambridge University Press, 2008 Citizenship and Immigration Law, 1800–1924 203 infliction of petty humiliation and violence. African Americans confronted borders – were made foreigners – as part of their everyday lives, but in paradoxical ways. Although they might not be permitted to purchase homes in certain neighborhoods, they were permitted to work there as domestics. Although they could not be guests in certain hotels, they could labor in hotel kitchens. Often, the object of segregation was simply to point to itself, as when African Americans in the south were required to sit in designated parts of public buses. The irony of the struggle to desegregate residential and educational spaces in America, especially in the urban North between 1940 and 1980, was that it was often fought precisely against Jewish and Catholic immigrants and their immediate descendants who had come to occupy intermediate positions in America’s ethnic and racial hierarchies, if they had not already become fully “white.” To be sure, it was often precisely members of those immigrant groups who labored alongside African Americans, operated establishments that served them, and supported the African American struggle for civil rights. However, these immigrant groups also actively distanced themselves from African Americans – for example, American Jews who performed “blackface” – in order to negotiate their own social standing. It was in the struggles between African Americans and white ethnic Americans that one of the most egregious forms of twentieth-century internal foreignness (residential and educational segregation) was dismantled, even as it was simultaneously reconstituted in the form of suburbanization and an ongoing “urban crisis.” The African American experience in the United States, both before and after the Civil War, might be taken as a model for thinking about immigration. It suggests that foreignness has no intrinsic connection to whether one stands inside or outside territory. That boundary is simultaneously produced and transgressed, not least in the activities of the immigration regime itself. The model calls for a measure of caution when we designate those knocking at America’s gates as outsiders from other countries to whom we owe nothing. American history tells us that the status of outsider has often, even paradigmatically, been conferred on those most intimately “at home.” Cambridge Histories Online © Cambridge University Press, 2008 7 federal policy, western movement, and consequences for indigenous people, 1790–1920 david e. wilkins In virtually every respect imaginable – economic, political, cultural, sociological, psychological, geographical, and technological – the years from the creation of the United States through the Harding administration brought massive upheaval and transformation for native nations. Everywhere, U.S. Indian law (federal and state) – by which I mean the law that defines and regulates the nation’s political and legal relationship to indigenous nations – aided and abetted the upheaval. The nature of U.S. Indian law is, of course, fundamentally different from the various indigenous legal and customary traditions that encompassed the social norms, values, customs, and religious views of native nations. These two fundamentally distinct legal cultures, and their diverse practitioners and purveyors, were thus frequently in conflict. Important moments of recognition, however, did take place, particularly the early treaty period (1600s–1800), and later, there were infrequent, spasms of U.S. judicial recognition. In Ex parte Crow Dog (1883) and Talton v. Mayes (1896), for example, the U.S. Supreme Court acknowledged the distinctive sovereign status of native nations by holding that the U.S. Constitution did not constrain the inherent rights of Indian nations because their sovereignty predated that of the United States.1 Perhaps the period of greatest European acceptance occurred during the encounter era when indigenous practices of law and peace, particularly among the tribal nations of the Northeast, served as a broad philosophical and cultural paradigm for intergovernmental relations between indigenous peoples and the various European and Euro-American diplomats and policymakers with whom they interacted. Whether tribal, based in indigenous custom and tradition, or Western, based in English common law custom and tradition, law speaks to the basic humanity of individuals and societies. In both cases, it provides guidance for human behavior and embraces ideals of justice. Initially, therefore, law 1 109 U.S. 556; 163 U.S. 376. 204 Cambridge Histories Online © Cambridge University Press, 2008 Federal Policy, Western Movement, and Consequences 205 was a powerful way for indigenous and non-indigenous leaders to forge well-founded diplomatic relations. This state of multicultural negotiations, of treaties and mutual respect, would not be sustained. Gradually Euro-American attitudes of superiority – legal, political, religious, and technological – became uppermost. Tribal systems of law, policy, and culture came to be disrespected, displaced, and sometimes simply destroyed. Shunted aside into the corners as colonized peoples, native peoples seeking justice were required to use the same Anglo- American legal system that had devastated their basic rights. Since the early 1800s, U.S. Indian law has only occasionally acknowledged the distinctive condition – tribal sovereignty – that structures every indigenous community’s efforts to endure in their political and legal relationship with the federal government and the constituent states. The absence of genuine bilateralism – the lack of indigenous voice in law and politics despite the written diplomatic record – has plagued the political and legal relationship between tribal nations and the United States ever since. Here we focus on the creation of this situation. The greatest absence in the study of American legal history and federal Indian law is the actual voice and presence of American Indians. That daunting silence enables Western law practitioners to act as if their vision and understanding of the law are all there is or ever was. Their presumption is contradicted by the ways in which the treaty relationship unfolded and in which indigenous peoples still struggle to practice their own legal traditions in the face of overwhelming pressure to ignore or belittle those very traditions. But the presumption is immensely powerful. How did U.S. law come so to dominate, directly and indirectly diminishing the inherent sovereign status of native nations and their equally legitimate legal traditions? The short answer is that the reluctance or unwillingness to acknowledge the legal pluralism of the continent stemmed from the inexorable drive of national and state politicians, the legal establishment, business entrepreneurs, and white settlers to ensure that nothing derail Euro-America’s expansion from a fledgling national polity to an internationally recognized industrial state wielding unprecedented power, domestically and abroad. The law, as defined and exercised by those in power in federal, state, and corporate offices, occasionally recognized indigenous sovereignty, resources, and rights. Far more often it was employed to destroy or seriously diminish them. Alexis deTocqueville, one of the first commentators to note the almost fervid concern that Americans had with law and the legal process, observed its application to indigenous affairs. “The Americans,” said de Tocqueville, in contrast to the “unparalleled atrocities” committed by the Spaniards, had succeeded in nearly exterminating the Indians and depriving them of their rights “with wonderful ease, quietly, legally, and philanthropically, without Cambridge Histories Online © Cambridge University Press, 2008 206 David E. Wilkins spilling blood and without violating a single one of the great principles of morality in the eyes of the world. It is impossible to destroy men with more respect to the laws of humanity.”2 Coming to power during the bloody American Revolution and anxious to establish the legitimacy of their new state in the court of world and American settler opinion, U.S. policymakers, in constructing their framework for a democratic society, fervently supported a social contract that theoretically recognized the rights of virtually everyone. With sufficient flexibility of interpretation, the same contract allowed the oppression of basic human rights of women and minorities, indeed of any non-whites who lacked the proper skin color, class, and social connections to profit from the expansion of the state. Native nations, because of their preexistence, political and economic independence, and early military capability, won a degree of respect from colonizing European nations and later the United States that African slaves and women could not obtain. Simultaneously, however, the American public stressed the tribal nations’ allegedly inferior cultural, political, technological, and social status in relation to Euro-Americans. This schizophrenic mindset evidenced itself in U.S. Indian law in three distinctive yet interrelated paradigms or predispositions. The three are distinctive in the sense that their foundations lie in different sources, time periods, and motives. They are interrelated because underlying each is the same foundation of colonial and ethnocentric/racist assumptions. The three paradigms can be summarized by three keywords: treaties, paternalism, and federalism. The treaty paradigm deems law the most effective instrument to ensure justice and fairness for aboriginal people. Here, the federal courts and the political branches formally acknowledged tribal nations as distinctive political bodies outside the scope of U.S. law or constitutional authority. The most basic assumption of this viewpoint was that treaty considerations (i.e., ratified treaties or agreements) were the only appropriate and legitimate instruments by which to engage in and determine the course of diplomacy between indigenous communities and the United States. As only nations may engage in treaties, the constituent states were reduced to being observers and could not interfere in the nation-to-nation relationship without federal and tribal consent. When federal lawmakers and jurists acted in accordance with the treaty paradigm, as they did in enacting the Northwest Ordinance of 1787 and in cases such as Worcester v. Georgia (1831), The Kansas Indians (1867), and 2 Alexis de Tocqueville, Democracy in America, vol. 1, edited by J. P. Mayer (Garden City, NY, 1969), 339. Cambridge Histories Online © Cambridge University Press, 2008 Federal Policy, Western Movement, and Consequences 207 Ex parte Crow Dog (1883),3 the United States was formally acknowledging that tribes were separate and sovereign nations and that the treaties that linked the two sovereigns, much more than being mere contracts, were the supreme law of the land under Article VI of the Constitution. Under this disposition, the federal government’s actions generally left indigenous nations free of the constitutional constraints applicable to the states and to the federal government itself. Early interactions under the treaty paradigm, then, granted both explicit and implicit recognition to legal pluralism, even though the language used in the various policies, laws, and cases still sometimes contained racist and ethnocentric discourse that perpetuated stereotypes about indigenous peoples. The other two paradigms, of federalism and of paternalism, were far more commonly used throughout the period under examination – and beyond – to justify federal and state laws and court decisions that had devastating consequences for indigenous collective and individual rights. The consequences were so severe, in part, because neither of these frameworks gave any consideration whatsoever to native values, laws, or morals. When the United States operated in accordance with the paradigm of federalism, the law was perceived as the prime mechanism for furthering the political and economic development and territorial expansion of the United States as a nation in conjunction with its constituent states. This view of the law was maintained notwithstanding the simultaneous presence on the North American continent – in fact and in law – of aboriginal nations, each intent on maintaining its own political and economic development and historic territories. The federalism paradigm was inward-looking, concentrating its gaze on the Euro-American political community. It treated tribal nations largely as obstacles to that entity’s self-realization, otherwise unseen and unheard. This paradigm was very much in evidence prior to the CivilWar. When operating in accordance with the paradigm of paternalism, the United States tended to portray itself as a deeply moralistic, civilized, and Christian nation, virtually always above reproach. This view predominated from the 1860s into the 1930s, when the federal government inaugurated the Indian reservation program, established boarding schools, allotted Indian lands, and forcibly sought to acculturate indigenous peoples. Deeming Indian persons and nations culturally inferior, the law became an essential instrument in moving them from their uncivilized or “primitive” status to mature civility. The United States envisioned itself as a benevolent “guardian” to its na¨ıve Indian “wards”; their cultural transformation was 3 31 U.S. (6 Pet.) 515; 72 U.S. (5 Wall.) 737; 109 U.S. 556. Cambridge Histories Online © Cambridge University Press, 2008 208 David E. Wilkins considered inevitable. The only question was whether the process would be achieved gradually or rapidly. Fundamentally, the various processes used by federal and state officials and corporate powers under the three paradigms brought about the cultural genocide, segregation, expulsion, and coerced assimilation of native peoples. Of these, coercive assimilation – the effort to induce by force the merger of politically and culturally distinctive cultural groups (tribal nations) into what had become the politically dominant cultural group (Euro-American society) – has been the most persistent process employed by U.S. lawmakers. The most vigorous and unapologetic manifestations of forced assimilation occurred during the latter part of the nineteenth century and into the 1920s. The Supreme Court sanctioned the denial of treaty rights, the confiscation of Indian lands, and a host of other coercive intrusions on the tribes by its creation of a new and wholly non-constitutional authority, Congressional plenary power, which it defined as virtually boundless governmental authority and jurisdiction over all things indigenous. While federal power is rarely wielded so crassly today, both the Supreme Court and the Congress continue to insist that they retain virtually unlimited authority over tribal nations and their lands. The three paradigms or predispositions described here – treaties, federalism, and paternalism – have successively filled the imaginative field in which U.S. lawmakers and politicians operated during the nineteenth century and after and, to a real extent, in which they still operate today. Indigenous nations at the beginning of the nineteenth century were generally recognized by the United States as political sovereigns and territorial powers, even though they were usually deemed to be culturally and technologically deficient peoples. Between 1790 and 1920, tribal nations and their citizens experienced profound shifts in their legal and political status: from parallel if unequal sovereigns to domestic-dependent sovereigns; from relatively autonomous to removable and confinable entities, then to ward-like incompetents with assimilable bodies; and then, finally, to semi-sovereign nations and individuals entitled to degrees of contingent respect for their unique cultural, political, and resource rights, but only through the condition of attachment to land, which in turn meant continued subordination to an overriding federal plenary control. These oscillations in the fundamental legal and political status of indigenous peoples confirm federal lawmakers’ and American democracy’s inability or unwillingness to adopt a consistent and constitutionally based approach to native peoples’ sovereignty and their distinctive governmental rights and resources. The successive changes arise from Euro-American perceptions of aboriginal peoples – albeit perceptions with all too real consequences – rather than from the actualities of aboriginal peoples, how they Cambridge Histories Online © Cambridge University Press, 2008 Federal Policy, Western Movement, and Consequences 209 “really are.” They lead us to the conclusion that the United States has consistently refused to acknowledge the de facto and de jure legal pluralism that has always existed in North America. The federal government has still to live up even to the potential outlined in many treaties, the Constitution, and the Bill of Rights, far less the reality of what is written there. As the discussion of the treaty paradigm will show, indigenous law and sovereignty occasionally have been recognized in U.S. law. They continue to play an important, if variable, role in structuring tribal political and economic relations with the United States and the several states. A number of commentators have observed that recognition and support of the indigenous legal and cultural traditions of tribal nations are critical if a democracy of law is ever to be achieved in the United States. Despite the remarkable efforts of tribal nations to retain and exercise essential components of their cultures and traditions, the political, legal, economic, and cultural forces wielded by non-Indians have made it impossible for tribes to act unencumbered. Yet their traditions remain “deeply held in the hearts of Indian people – so deeply held, in fact, that they retained their legal cultures in the face of U.S. legal imperialism, creating a foundation for a pluralist legal system in the United States today.”4 It is unfortunate that the Euro-American law that has occasionally supported tribal sovereignty has, so much more often, diminished it. I. PARALLEL SOVEREIGNS: TRADE, TRUST, AND TREATY RELATIONS, 1790–1820 Cyrus Griffin, the President of Congress, announced on July 2, 1788, that the Constitution had been ratified by the requisite nine states. Federal lawmaking might then proceed. At that time, however, a significant body of law was already in existence, developed by Great Britain, France, Spain, Sweden, Russia, and Holland, and by the American colonies and by the Continental Congress, in their respective dealings with one another and with aboriginal nations. This body of multinational law incorporated many of the basic political and legal promises that the United States would later use to construct its relationship with indigenous governments. The United States had inherited the idea of using law in its dealings with tribes from predecessor European colonial governments. Each of the colonial powers had exhibited distinctive political, social, and cultural traits in their interactions with the various indigenous nations they encountered, but certain principles and policies had been applied in common by the end of the eighteenth century and would be continued by 4 Sidney Harring, Crow Dog’s Case (New York, 1994), 24. Cambridge Histories Online © Cambridge University Press, 2008 210 David E. Wilkins the United States. First was the doctrine of discovery, which had arisen in the fifteenth century from Catholic Papal bulls and European monarchical claims. The discovery doctrine held, in its most widely understood definition, that European explorers’ “discovery” of lands gave the discovering nation (and the United States as successor) absolute legal title and ownership of the soil, reducing the indigenous occupants to mere tenants holding a lesser beneficial interest in their original homelands. Conversely, discovery also was defined as an exclusive and preemptive right that vested in the discovering state nothing less than the right to be the first purchaser of any lands the native owners might decide to sell. Here, discovery is a colonial metaphor that gave the speediest and most efficient discovering nation the upper hand in its efforts to colonize and exploit parts of the world hitherto unknown to Europeans. It was a means of regulating competition between vying European nations. Discovery also had symbiotic links to the doctrine of conquest: the acquisition of territory by a victorious state from a defeated entity in war. Second came the trust doctrine, also known as the trust relationship. Like discovery, trust arose in the early years of European discovery and settlement of the Americas and can be traced back to Catholic Papal bulls. This doctrine holds that European nations and their representatives, as allegedly superior peoples, had a moral responsibility to civilize and Christianize the native peoples they encountered. Discovery and trust are fundamentally related concepts, with the “discoverer” having the “trust” obligation to oversee the enlightenment and development of the aboriginal peoples, since natives were not conceived as sufficiently mature to be the actual “owners” of their own lands. Third was the application of a doctrine of national supremacy in matters of European (and later American) political and commercial relations with tribal nations. The regulation of trade and the acquisition or disposition of indigenous lands were to be managed by the national government and not left to constituent subunits of government, or to land companies or individuals. Finally, because of the military and political capability and territorial domain controlled by the native nations, diplomacy in the form of treaties or comparable contractual arrangements was considered the most logical and economical method of interaction with indigenous peoples. Endorsement of these important principles and policies – discovery, trust, federal supremacy, and diplomacy – was evident in several early actions by U.S. lawmakers. A first instance occurred in 1787, when the Confederation Congress enacted the Northwest Ordinance. The Ordinance defined a Northwest Territory in the Great Lakes region and set up guidelines for political and economic development of the region that would eventually Cambridge Histories Online © Cambridge University Press, 2008 Federal Policy, Western Movement, and Consequences 211 lead to the creation of new states. Simultaneously, and adversely, Article 3 of the Ordinance contained a striking and unusual passage on the moral or trust relationship that the United States would follow in its dealings with Indian peoples. It reads in part: The utmost good faith shall always be observed towards the Indians, their lands and property shall never be taken from them without their consent; and in their property, rights and liberty, they never shall be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity shall from time to time be made, for preventing wrongs being done to them, and for preserving peace and friendship with them . . . 5 The Northwest Ordinance, that is, embraced fundamentally contradictory policies. On the one hand, the United States sought to assure tribes that their lands and rights would be respected, except when “just and lawful wars” were fought. On the other hand, the lawmakers had already essentially distributed those same lands to the present and future white settlers, intent on continuing their inexorable march westward. The contradiction would endure. The new federal Constitution was adopted two years later, in 1789. It contained four major constitutional clauses that directly implicated the indigenous/U.S. relationship: Commerce, Treaty-Making, Property, and War and Peace. These clauses affirmed that the national government – and Congress in particular – had exclusive authority to deal with indigenous nations in regard to trade and intercourse, diplomacy (to fight or parley), and land issues. While each would prove significant, the Commerce Clause, which empowers Congress to “regulate commerce with foreign nations . . . states . . . and with the Indian tribes,” was the only source of explicit powers delegated to the legislative branch. In theory, the clause should not have extended to Congress any greater authority over tribes than it exercised over states. In both historical and contemporary practice, however, such has not been the case. As tribal dominion waned during the course of the nineteenth century, the federal government used the Commerce Clause to justify many new assertions of national authority over tribes. It also developed an entirely novel non-constitutional authority – plenary power – by which Congress, by definition, was granted absolute control over all indigenous affairs. By the latter part of the century, these legal tools enabled federal lawmakers to extend their reach over indigenous affairs to remarkably oppressive levels. Beginning in 1790, at the behest of the president, the constitutional provisions most directly related to Indian affairs were given statutory expression 5 1 Stat. 50 (1789). Cambridge Histories Online © Cambridge University Press, 2008 212 David E. Wilkins in a series of laws later codified in 1834 as the Indian Trade and Intercourse Acts.6 The acts devoted considerable attention to maintaining peaceful relations with tribes by agreeing to respect Indian land boundaries and fulfill the nation’s treaty and trust obligations to tribes. These comprehensive federal Indian policies also contained clauses requiring federal approval of any purchase of tribal land, regulated the activities of white traders in Indian Country through licensing, and imposed penalties for crimes committed by whites against Indians. Importantly, the laws were aimed at shoring up alliances with the tribes and evidenced respect for treaty rights by restricting states, traders, and private citizens from engaging with tribes on their own account. The Trade and Intercourse Acts mainly embodied Congress’s legal and constitutional role as the primary agent in charge of overseeing trade and fulfilling the federal government’s treaty obligations. They had very little impact on the internal sovereignty of indigenous nations. In 1819, however, Congress stepped far beyond its designated role by adopting legislation explicitly designed to “civilize” Indian peoples. Appropriately entitled “An Act making provisions for the civilization of the Indian tribes adjoining the frontier settlements,”7 the statute was significant for three reasons. First, it meant that Congress had officially decided to seek the cultural transformation rather than physical destruction of native peoples. Second, it signaled a bifurcation in Congress’s responsibilities. While still charged with appropriating funds to fulfill the nation’s treaty requirements to tribes considered as separate entities, it had now opted to pursue a parallel policy of civilization, assimilation, and absorption of the Indian into the body politic of the United States. Finally, Congress was assuming the power to legislate for persons who were not within the physical boundaries of the United States; the majority of native peoples still lived outside the demarcated borders of the United States. The first responsibility, upholding treaty requirements, was constitutionally grounded in the Treaty and Commerce clauses. The second responsibility, or rather unilateral declaration, was an entirely different matter – embraced by Congress wholly gratuitously, without reference to the Constitution’s definition of its capacities. The intersection between what Congress was legally required to do in relations with Indians and what it chose to do created a powerful tension that has affected the legal and political relationship of tribes and the United States since that time. What happens, for instance, when there is a conflict between the two sets of responsibilities? This is no empty question. As we shall see, tribes’ treaty-reserved rights to designated communal land holdings, which it was Congress’s responsibility to uphold, would be countermanded by the same Congress when it pursued 64 Stat. 729 (1834). 73 Stat. 516 (1819). Cambridge Histories Online © Cambridge University Press, 2008 Federal Policy, Western Movement, and Consequences 213 plans to “civilize” the community of land holders by allotting them those same lands (or a fraction thereof) as individual Indian property holders. II. EARLY FEDERAL RESTRICTIONS OF TRIBAL PROPERTY AND SOVEREIGNTY: 1820s–1830 Even before the 1819 Civilization Act, Congress had signaled both in its ratification of certain treaties and its passage of particular statutes that indigenous peoples and their separate territories were within the reach of American citizenship and law. At this time, Congressional intent was couched in noncoercive terms to minimize the direct impact on tribal sovereignty. For example, Article Eight of the 1817 Treaty with the Cherokee – an early removal agreement – specified that those Cherokee who wished to remain on lands surrendered to the federal government were to receive a life-estate to a 640-acre individual “reservation” and also, if they desired it, American citizenship. The provisions were repeated in Article Two of the Cherokee Treaty of 1819. In part because of the increasing numbers of whites moving onto tribal lands, Congress also expressed its intention to enforce a measure of federal criminal law inside Indian Country. An act of March 3, 1817, declared that interracial crimes involving Indians and non-Indians committed within Indian Country would be punished in the same fashion as the same offenses committed elsewhere in the United States. The statute gave federal courts jurisdiction over those indicted under its provisions. Importantly, it did not apply to intraracial (Indian on Indian) crimes. Tribes were assured that no extant treaty rights were to be adversely affected by the law. Although U.S. Indian policy had been nationalized from the beginning of the American Republic, federal Indian law grew unevenly in the face of persistent legal wrangling between federal and state officials over which level of government would in fact control the nation’s relationship with tribes. Several of the thirteen original states, especially Georgia and New York, homes to the powerful and politically astute Cherokee Nation and Iroquois Confederated tribes, respectively, viewed themselves as superior sovereigns both in relation to the indigenous nations residing within “their” borders and to the federal government. The politicians in these two states continued to negotiate treaties with the tribes as if the Commerce and Treaty clauses did not exist or simply did not apply to their actions. This amalgam of states, with their expanding populations and economies; tribes, with their desire to retain their lands and treaty rights free of state and federal intrusion; and the federal government, with its contradictory impulse of supporting national and state territorial and economic expansion, but also responsible to tribes under treaty and trust obligations, proved Cambridge Histories Online © Cambridge University Press, 2008 214 David E. Wilkins a most volatile mix. By the end of the 1830s, the volatility in tribal-federalstate relations had worked out mostly to the detriment of the tribes: federal and state sovereignty were reinforced, territorial expansion encouraged, indigenous sovereignty and property rights weakened. Tribal rights and lands were not, of course, disregarded entirely. They were, however, sufficiently diminished that expropriation of Indian lands by land speculators, individual settlers, state governments, and federal officials could continue without letup. All of this was accomplished, in Alexis de Tocqueville’s words, “in a regular and, so to say, quite legal manner.”8 Tocqueville’s “legal manner” – that is to say, the legal underpinnings of the indigenous/non-indigenous relationship – was largely the construction of the U.S. Supreme Court, led by Chief Justice John Marshall. Specific decisions were absolutely basic to the Court’s achievement: Johnson v. McIntosh (1823), which dealt with tribal property rights; Cherokee Nation v. Georgia (1831), which determined tribal political status in relation to the federal government; Worcester v. Georgia (1832), which focused on tribal political status in relation to the states; and Mitchel v. United States (1835), which debated the international standing of tribal treaty rights. In fact, the cases would prove far more important for their long-run impact on tribal sovereignty as precedents and as legal rhetoric than for the specific issues each one addressed. At the time, and even as the national government’s political branches were preparing to force the removal of native nations from their ancestral lands, the federal judiciary’s rulings were supportive of as well as detrimental to indigenous rights. In McIntosh (1823), the Court institutionalized a revised doctrine of discovery and engaged in a convoluted discussion of the doctrine of conquest. The results were oppressive to the sovereignty and proprietary rights of tribes. According to Chief Justice John Marshall, writing for the Court, not only had the discoverer gained the exclusive right to appropriate tribal lands, but the tribes’ sovereign rights were diminished and their right to sell land to whomever they wished fatally compromised. Marshall acknowledged that both the discovery and conquest doctrines were self-serving, yet relied on them nonetheless. “However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear,” he ruled, “if the principle has been asserted in the first instance, and afterwards, sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land, and cannot be questioned.”9 The Court transfo,rmed these extravagant theories into legal terms for largely political and economic reasons: the increasing indigenous resistance to land loss, uncertainty over what Spain, 8 de Tocqueville, Democracy in America, 324. 9 21 U.S. (8 Wheat.) 543, 591. Cambridge Histories Online © Cambridge University Press, 2008 Federal Policy, Western Movement, and Consequences 215 France, and Russia’s long-term intentions were on the continent, and its own desire to formulate a uniform American law of real property. Still, although it denied that tribes could alienate their lands to whomever they wished, the Court conceded that the Indians retained a right of perpetual occupancy that the United States had to recognize. It also determined that the federal government had to secure Indian consent before it could extinguish Indian occupancy title. In these respects the Court displayed a desire to adhere, at least in theory, to just and humane standards that recognized the prior existence of tribes and a measure of their property rights title, even as it embraced the ethnocentric view of the technological and proprietary superiority ofWestern nations. In December 1823, some nine months after McIntosh, President James Monroe acted at the international level to solidify American hemispheric hegemony in a fashion that also confirmed the domesticated status of indigenous property. Monroe’s message was propounded in his Annual Message to Congress, becoming what would be called the Monroe Doctrine. Drafted partially as a response to Russia’s intention to extend its settlements southward from Alaska with an eye to joining with France, Austria, and Prussia in an attempt to force newly independent Spanish-American republics to return their allegiance to Spain, the Monroe Doctrine declared U.S. opposition to European meddling in the Americas. The political systems of the American continents were fundamentally different from those of Europe, Monroe warned. The United States would consider “as dangerous to our peace and safety” any attempt by European powers to extend their authority in the Western hemisphere. Reciprocally, the United States would not interfere with existing European colonies in the Americas or in the internal affairs of Europeans, or participate in European wars of foreign interests. The combined effect of the McIntosh ruling and the Monroe Doctrine did not bode well for indigenous property or sovereignty. Meanwhile, Eastern states, clamoring for additional Indian lands and resources for their burgeoning populations and to rid themselves of an indigenous presence, gained a major ally when Andrew Jackson was elected president in 1828. The stage was set for a major test of American democracy, federalism, and the doctrine of separation of powers. The indigenous community that would bear the brunt of much of this concentrated attention was the Cherokee Nation of the Southeast. III. THE CHEROKEE NATION, JOHN MARSHALL, AND THE LAW The Cherokee were one of the first native peoples to succeed in fusing ancient tribal law ways with Anglo-American legal institutions. This acculturation Cambridge Histories Online © Cambridge University Press, 2008 216 David E. Wilkins process, in which theWestern legal system was modified to Cherokee needs, was actually underway by the early 1820s. In that decade alone the Cherokee crafted a constitution loosely modeled after that of the United States, produced a written version of their language, and established the first tribal newspaper. In 1827, they formally announced their political independence, a fact already well understood by the federal government as evidenced by the fourteen ratified treaties signed with the tribe. The Cherokee emphatically declared that they were an independent nation with an absolute right to their territory and sovereignty within their boundaries. The Cherokee declaration enraged Georgia’s white population and state officials. Driven by the recent discovery of gold on tribal lands, but compelled even more by a conception of state sovereignty that precluded limitations imposed by the federal government, let alone a tribal people, Georgia legislators enacted a series of debilitating, treaty-violating laws designed to undermine Cherokee self-government. These acts parceled out Cherokee lands to several counties, extended state jurisdiction over the nation, and abolished Cherokee laws. Cherokee appeals to President Jackson and Congress to intercede failed, and the tribe filed suit in the Supreme Court against Georgia, praying for an injunction to restrain Georgia’s execution of the laws aimed at their legal dismemberment. Chief Justice Marshall rendered the Court’s fragmented and ambivalent ruling on March 18, 1831 (Cherokee Nation v. Georgia). A more fascinating case could hardly be imagined, Marshall noted. But first the Court had to ascertain whether it had jurisdiction to hear the case. Since the Cherokee were suing as an original plaintiff, the Court had to decide whether they constituted a “foreign state.” After lengthy ruminations, Marshall held that the Cherokee Nation were not a foreign state and therefore could not maintain an action in the federal courts. If they were not a foreign state, what were they? Marshall refused to accept either of the views of tribes available at the time – as foreign nations or subject nations. As “subject” nations, they would have been at the mercy of the states; as “foreign” nations, they would have been independent of federal control. Instead, Marshall generated an extra-constitutional political status for tribes by characterizing them as “domestic dependent nations.” This diluted and ambiguous status has had a lasting effect on all tribes, even though technically it applied only to the Cherokee. First, the description precluded tribes from bringing original actions to the Supreme Court. And second, since they were denied status as “foreign nations,” the tribes were effectively barred from benefits accorded to fully recognized sovereigns under international law. Building on the legal construct of “discovery” that he had articulated in McIntosh, Marshall said that tribes occupied territory to which the United Cambridge Histories Online © Cambridge University Press, 2008 Federal Policy, Western Movement, and Consequences 217 States asserted a superior title. He then added extremely problematic wording that would prove highly detrimental to tribes. Tribes were “in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian.”10 Overall, the Court was highly fragmented. Six Justices (the seventh, Justice Duvall, was absent) presented four different sets of views on tribal status. Justice Johnson held that tribes lacked sovereignty but possessed an inherent political power that could mature into sovereignty later. Justice Baldwin simply said tribes had no sovereignty. Justices Thompson and Story believed that tribal status paralleled that of foreign nations. Justice McLean joined Marshall in his description of tribes as domestic dependent nations. On the jurisdictional question the majority was thus against the Cherokee. On the merits, however, the Court divided four to two for the Cherokee. The Chief Justice, in fact, insinuated that he sided with the minority on the merits – he encouraged Justices Thompson and Story to write out their dissenting views. The Chief Justice even suggested a method of getting a case properly before the Court in the future. Marshall would have the opportunity to reveal his innermost feelings sooner than he anticipated. Worcester v. Georgia (1832), the third of the Court’s seminal Indian cases, is often hailed as the most persuasive and elaborate pronouncement of the federal government’s treaty-based relationship with tribal nations. Interestingly, the Cherokee were not direct parties to this suit. And whileWorcester is generally considered the strongest defense of tribal sovereignty, it may be understood more accurately as a case that supports federal sovereignty over state sovereignty. The principals in the case were Christian missionaries led by Samuel A. Worcester and Elizur Butler, and the State of Georgia. Georgia had enacted a law in 1831 that prohibited whites from entering Cherokee country without first securing a state license.Worcester and Butler had entered Cherokee territory without state authorization, but with tribal and federal approval. They were arrested and sentenced to four years in prison for violating state law. The missionaries immediately retained lawyers who brought suit against Georgia in federal court on the grounds that Worcester and Butler were agents of the United States. This raised the question of federal supremacy over state law. Here was the test case for which Marshall had been waiting. Unlike his ambiguous opinion in Cherokee Nation, Marshall emphatically declared that all of Georgia’s Indian laws violated the Constitution, federal statutes, and the treaties between the United States and the Cherokee. Lifting text almost verbatim from Justice Thompson’s dissent in Cherokee 10 30 U.S. (5 Pet.) 1, 17. Cambridge Histories Online © Cambridge University Press, 2008 218 David E. Wilkins Nation on the international status of tribes, Marshall held that treaties and the law of nations supported Cherokee sovereignty and independence, even though the Cherokee were no longer as powerful militarily as they had been and were now under the political protection of the federal government. Worcester supposedly settled the issue of federal preeminence over state power regarding Indian tribes. The Chief Justice based much of his defense of federal power on his view of Indian tribes “as distinct, independent political communities.”11 He noted that the War and Peace, Treaty-Making, and Commerce Clauses provided the national government with sufficient authority to regulate the nation’s relations with tribes. Marshall also attempted to rectify his previous equivocations on the doctrine of discovery, which he now said was nothing more than an exclusive principle limiting competition among European states that could not limit Indian property rights. He also clarified the Court’s view of the actual political status of tribes. In Cherokee Nation, tribes were called “domestic dependent nations,” not on par with “foreign” states. In Worcester, however, tribes were referred to as “distinct, independent communities,” properly identified and treated as nations. Although the Court overturned Georgia’s actions and orderedWorcester’s release, he remained in prison and was released only when a later deal was struck. More significantly and tragically, however, the majority of the Cherokee people and more than 100,000 other Indians representing more than a dozen tribes were eventually coerced into signing treaties that led to their relocation to Indian Territory west of the Mississippi River. Three years later, in Mitchel v. United States (1835), the Supreme Court issued another important opinion on indigenous rights. It has received little attention from legal and political commentators, in large part because most writers have concentrated their attention on the so-called Marshall trilogy – McIntosh, Cherokee Nation, and Worcester. In Mitchel, possibly because he was near retirement (he stepped down in July 1835), Marshall opted not to write the decision and assigned it to Justice Henry Baldwin. Mitchel should be added to that short list of Supreme Court rulings that exhibit some support for tribal sovereignty and indigenous land rights. The Court’s holding fundamentally contradicts, without expressly overruling, the doctrines espoused in McIntosh. The ruling asserted the following key principles: first, the doctrine of discovery lacks credibility as a legal principle; second, tribes are possessors of a sacrosanct land title that is as important as the fee-simple title of non-Indians; third, tribes have the right to alienate their aboriginal property to whomever they wish; fourth, the alleged inferiority of tribal culture does not impair aboriginal 11 31 U.S. (6 Pet.) 515, 559. Cambridge Histories Online © Cambridge University Press, 2008 Federal Policy, Western Movement, and Consequences 219 sovereignty; and fifth, tribes are collective polities and they and their members are entitled to international law’s protections of their recognized treaty rights. Tribes emerged from the Marshall era with a contradictory political status. They had been labeled both domestic dependent nations and distinct and independent political communities. The assertion that tribes were independent polities most closely approached their actual situation. But the cases’ confused and contradictory analogies would prove highly problematic, resulting in persistent confusion about exactly where – if anywhere – tribal nations fit in the American constitutional landscape. The long-term consequences of Marshall-era principles – discovery, the analogy of wardship, and domestic indigenous status – have been their distinct diminution of tribal sovereignty. Other Marshall era ideas – the supremacy of Indian treaties, the independence of tribal communities, the exposure of discovery, the exclusive jurisdiction of the federal government, and the sacredness of Indian title – offer tribes means to retain some measure of legal and political sovereignty. IV. TRIBAL SOVEREIGNTY AND WESTERN EXPANSION, 1835–1860s The three decades between Mitchel (1835) and the inception of the American CivilWar (1861) were tumultuous years in American history, marked from the beginning as an era of massive Indian removal. These were the opening years of “Manifest Destiny,” when the United States acquired political control of large parts of the FarWest and, unexpectedly, encountered a new Indian frontier. The new territories included Texas (1845), Oregon (1846), more than one million square miles of the Southwest and West obtained from Mexico by the Treaty of Guadalupe Hidalgo (1848), and an additional 29,640 square miles acquired from Mexico in the Gadsden Purchase (1853). Within the span of a decade, the size of the United States had increased by 73 percent. These vast conquests and purchases resulted in the physical incorporation into the United States of scores of previously unknown native nations. The inevitable cultural and territorial collision resulted in a Congressional policy of containment, specifically the establishment of Indian reservations. Between the 1830s and 1850s, the reservation policy remained in an experimental stage. It would not be implemented fully until the 1860s. In fact, treaties rather than Congressional legislation formed the basis of the law during this era of rapid expansion. That said, the broad outline of U.S. Indian policy – still visible – can be found in two comprehensive laws enacted by Congress, on June 30, 1834. The first measure was the final act in a series Cambridge Histories Online © Cambridge University Press, 2008 220 David E. Wilkins of statutes that regulated trade and intercourse with tribes.12 The second, enacted the same day, provided for the organization of the Department of Indian Affairs.13 By adopting these laws, Congress developed a set of institutions and procedures that clarified what had been a thoroughly ill-defined structural relationship between the United States and tribal nations. By the late 1840s, two additional statutes had been enacted that were to have a lasting effect on tribes. The first amended the 1834 Non-Intercourse Act that had organized the Department of Indian Affairs.14 The new measure made two significant changes in federal Indian policy. First, it stiffened and broadened preexisting Indian liquor legislation, which had long outlawed liquor in Indian country (a prohibition that would remain in effect until 1953). Second, it signaled a profound change in the manner and to whom the federal government would distribute moneys owed to native nations. Previously those funds were distributed to tribal chiefs or other leaders. Section 3 declared that moneys owed to Indian nations would instead be distributed directly to the heads of individual families and other individuals entitled to receive payments. Ostensibly designed to reduce the influence of white traders on tribal leaders, this amendment, in effect, gave federal officials tremendous discretionary authority on the question of tribal membership, insofar as the disposition of funds was concerned. According to legal scholar Felix Cohen, this was the first in a series of statutes aimed at individualizing tribal property and funds in a way that diminished the sovereign character of tribal nations. The second act (1849) established the Department of Interior.15 It contained a provision calling for the transfer of administrative responsibility for Indian affairs from the War Department to the new department. Supporters of this move believed, prematurely, that Indian warfare was ending and that responsibility for Indian affairs should therefore be placed in civilian hands. Congress retained constitutional authority to deal with tribal nations, but the legislature more often deferred to the president and the executive branch, especially in the sensitive area of Indian treaties, which were being negotiated by the dozens during this period. Justice Roger Taney and Indian Law Coinciding with the emergence of a more activist national state – legislative and executive – on tribal questions, the Supreme Court under Marshall’s successor, Chief Justice Roger Taney, began to produce legal doctrines that confirmed the suppression of the treaty paradigm in favor of “federalism.” 124 Stat. 729 (1834). 134 Stat. 735 (1834). 149 Stat. 203 (1847). 159 Stat. 395 (1849). Cambridge Histories Online © Cambridge University Press, 2008 Federal Policy, Western Movement, and Consequences 221 Taney enunciated the Court’s embrace of this new perspective on tribal political status in United States v. Rogers (1846). Ironically, this unanimous decision, like the Marshall cases, also involved the Cherokee, even though they were not directly a party to the suit. William S. Rogers, a white man residing within Cherokee Territory, had been indicted in a federal circuit court for the murder of Jacob Nicholson, also a white man. The crime had occurred in Cherokee Country. A confused circuit court sent the case to the Supreme Court on a certificate of division. Taney, writing for a unanimous court, dramatically rewrote the history of the legal and political relationship between tribes and the United States. Contrary to Marshall’s fact-based Worcester opinion, Taney misrepresented the basis of Cherokee title to their lands, proposing that their lands had been “assigned to them” by the federal government and that they held title only with the “permission” of the United States. The Cherokee and the scores of other tribes then negotiating treaties with the United States were no doubt shocked to hear Taney use the discovery doctrine in a way that essentially denied any native proprietary rights at all. Removal, the Court implied, not only vacated any rights Indians thought they might have had in their original territories but it also offered them no substitute rights in the “Indian territory” to which they had been forced to move. Rogers was also the first Indian law opinion to outline explicitly the Court’s “political question” doctrine. Political question doctrine holds that it is not the province of the courts to render rulings on matters deemed essentially “political” in nature. These are matters best left to the legislative and executive branches. Describing Indians as an “unfortunate race,” Taney stated that, even if Indians had been mistreated, “yet it is a question for the law-making and political department of the government, and not the judicial.” 16 Along with the absence of land rights went the absence of conventional legal means of redress. The political question doctrine would continue to plague Indian legal efforts until it was formally disavowed in the 1980 Supreme Court ruling United States v. Sioux Nation. Rogers is an appropriate representative of Supreme Court cases emphasizing the federalism paradigm, by which federal dominance over tribes was confirmed in virtually every respect – property, political status, and ethnic identity. It is worth noting that ten years after Rogers, Chief Justice Taney’s infamous Dred Scott opinion (1857) would refer to Indians as historically “a free and independent people, associated together in nations or tribes” and treated as foreign governments “as much so as if an ocean had separated the red man from the white.”17 The description underscores the transformation to which Rogers had contributed. 1645 U.S. (4 How.) 567, 572. 1760 U.S. (19 How.) 393, 404. Cambridge Histories Online © Cambridge University Press, 2008 222 David E. Wilkins The Taney Court’s doctrines were particularly harmful to tribal sovereignty because that Court was much more concerned than its predecessor with protecting state authority within U.S. federalism. Historically, states’ rights activists have generally been less supportive of tribal rights because of the geopolitical relationship between states and tribes (illustrated in Georgia’s conflict with the Cherokee). Nevertheless, at this point most tribal nations existed outside the scope of Anglo-American law. Before midcentury, the law’s impact had been felt mostly by the Eastern tribes whose experience with Euro-Americans dated to the pre-Revolutionary period. Western expansion would rapidly terminate this geographical isolation. The gradual encirclement of tribes by non-Indians, increased immigration, the Civil War and Reconstruction, and burgeoning industrialization – fueled in part by transcontinental railroads – all produced the circumstances in which the federalism paradigm would wreak legal havoc on native nations. V. ORIGIN AND SCOPE OF FEDERAL PLENARY (ABSOLUTE) POWER: 1871–1886 From the late 1860s through the early twentieth century, the United States – Congress in particular – was openly bent on the destruction of native nations as identifiable cultural, sociological, and political bodies. The era of Congressional unilateralism vis-`a-vis indigenous peoples began during Reconstruction; its clearest expression was a rider inserted in the Indian Appropriation Act of March 3, 1871, which provided “That hereafter no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty.”18 Congressional unilateralism culminated in 1906 in systematic efforts to terminate the sovereign status of the Five Civilized Tribes in Indian Territory. Throughout, Congress wielded self-assumed and virtually unrestrained powers over Indians that could never have survived constitutional muster had they been asserted against American citizens. The year 1871 is important for a second reason besides Congressional repudiation of formal treaty-making. In May of that year, two months after the repudiation of treaty-making, the U.S. Supreme Court ruled in The Cherokee Tobacco case19 that the 1868 Revenue Act, which contained a provision imposing federal taxes on liquor and tobacco products in the United States, had implicitly abrogated an 1866 Cherokee Treaty provision by which Cherokee citizens were exempted from federal taxes. 18 Stat. 566; Rev. Stat. § 2079, now contained in 25 U. S. C. § 71. 19 78 U.S. (11Wall.) 616 (1871). Cambridge Histories Online © Cambridge University Press, 2008 Federal Policy, Western Movement, and Consequences 223 For tribes, the conjunction was catastrophic. The treaty repudiation rider effectively froze tribes in political limbo. They were no longer recognized as polities capable of engaging in treaty-making with the federal government, yet they remained separate sovereignties outside the pale of the U.S. Constitution. Meanwhile, Cherokees who were not then American citizens were now required to pay taxes to the federal government despite their noncitizenship, their express treaty exemption, and their lack of Congressional representation. Tribes and individual Indians were now bereft of legal or political protection. The federal government could explicitly or implicitly abrogate treaty provisions, and tribes had no recourse other than turn to the very Congress that had stripped them of recognition. Following Rogers, the Supreme Court deferred to the political branches on Indian matters, declaring in effect that Congressional acts would prevail as if the treaties were not even documents worthy of consideration. In its 1871 rider, Congress had guaranteed the terms of treaties already negotiated. The Cherokee Tobacco decision almost immediately put that guarantee in doubt, announcing that treaty rights generally secured at the expense of significant amounts of tribal land and the loss of other valuable properties and freedoms could be destroyed by mere implication. The case established the “last-in-time” precedent (that is, later statutes may override earlier treaties) and also the rule that tribes are always to be considered “included” in Congressional acts unless they are specifically “excluded” in the language of the statute. And it disavowed the basic principle that specific laws, like treaties that generate special rights, are not to be repealed by mere implication of general laws. With the treaty process essentially stymied and extant treaties now subject to implicit disavowal, and with white settlers and land speculators flooding into the far reaches of the West driven by powerful economic motives and a sense of racial superiority, federal lawmakers struggled with how best to support what they deemed the inevitable spread of capitalism and Protestantism while still providing some degree of respect and protection for tribal peoples and their dwindling lands. A loose coalition of individuals and institutions that would come to be called the “Friends of the American Indian,” consisting of law professors, Christian leaders, reformers, leaders of the bar, and a few members of Congress, stood up against the powerful economic and political interests intent on destroying, or at least diminishing dramatically, the rights and resources of indigenous people. This loose alliance of native supporters, Petra Shattuck and Jill Norgren have written, “linked adherence to principles of rationality and morality with the pragmatic needs of manifest destiny. Their debates proved a forceful and convincing counterpoint to the popular clamor for the abrogation of the legal and moral commitments of the past.” Cambridge Histories Online © Cambridge University Press, 2008 224 David E. Wilkins The Friends of the American Indian may have helped ameliorate federal policy, but they did not alter its direction (nor did they wish to). Assimilation dominated federal Indian policy and law during the 1870s and into the first two decades of the twentieth century. It rested on consistent adherence to five basic goals: first, transform Indian men and women into agriculturalists or herders; second, educate Indians in the Western tradition; third, break up the tribal masses by means of individual allotment of tribal lands, in the process freeing non-allotted land for white settlement; fourth, extend U.S. citizenship to individual Indians; and fifth, supplant tribal customary law with Euro-American law. Save for the latter, these ideas had already been well in evidence, but their implementation had been spasmodic. From the 1870s on, with Indians essentially immobilized on reservations and rendered weak in the face of federal power by wars, alcohol, diseases, and displacement, the guardian-like U.S. government and allied institutions – notably the churches – could develop a more systematic and thorough approach to the increasingly ward-like status of indigenous peoples. In the 1880s, federal efforts to assimilate Indians took a variety of forms. Prime among these were attempts to extend American law to reservations, subdivide the Indians’ communal estate, and grant the franchise to individual Indians. First, let us consider the application of Euro-American criminal law to Indian Country. Prior to the 1880s, as we have seen, relations between tribes and the United States were largely determined by treaties and the policies outlined in the trade and intercourse acts. Internal tribal sovereignty, especially crimes between Indians, was largely untouched by federal law. The idea of imposing federal criminal jurisdiction, however, slowly gained momentum as Western expansion led to the encirclement and permanent penetration of tribal lands by non-Indians. This “de facto” assimilation required a de jure response, said the quasi-political Board of Indian Commissioners in 1871. Indians had to be brought under the “domination of law, so far as regards crimes committed against each other” or the federal government’s best efforts to civilize native peoples would be constrained.20 The first major case from the West involving the extension of Euro- American law into Indian Country arose directly as a result of the ever burgeoning numbers of whites settling on Indian lands. United States v. McBratney (1882)21 involved the murder of one white man by another within the boundaries of the Ute Reservation in Colorado. The Supreme Court ruled that the equal footing doctrine – which holds that states newly 20 United States Board of Indian Commissioners. Annual Report (Washington, DC, 1871), 432. 21 104 U.S. 621. Cambridge Histories Online © Cambridge University Press, 2008 Federal Policy, Western Movement, and Consequences 225 admitted into the Union were on an “equal footing” with the original states insofar as their political status and sovereignty were concerned – and the absence of explicit statutory language providing for federal rather than state jurisdiction regarding tribal lands gave state authorities jurisdiction over the crime. Ignoring Ute sovereignty and denying federal jurisdiction, the Court turned the Worcester principle of state non-interference in tribal territory on its head. Operating from its version of the federalism paradigm, it permanently transformed the tribal-state relationship by indicating that subject matter and identity, not geography, would determine questions of state jurisdiction. The issue of Indian-on-Indian crime was next to arrive at the Supreme Court. The landmark case Ex parte Crow Dog (1883) dealt with a Sioux leader, Crow Dog, sentenced to death for the murder of a chief, Spotted Tail. The high court, using the treaty paradigm, unanimously held that the federal government lacked jurisdiction over crimes committed by one Indian against another. The decision was an important, if stilted, statement on tribal sovereignty. It served as the catalyst to jurisdictional changes advocated by those anxious to have federal law supplant tribal law, the final tipping-point toward a half-century of assimilation. A mere eighteen months later, Congress repudiated the treaty-based Court decision by attaching a legislative rider to the general appropriation act of March 1885 that extended federal criminal jurisdiction over Indians in matters involving seven major crimes – murder, manslaughter, rape, assault with intent to kill, arson, burglary, and larceny.22 Congress’s direct attack on tribal sovereignty was not fatal to tribal self-determination, but enactment of the major crimes rider set a precedent for future Congressional intrusions. There was, however, some doubt as to the act’s constitutionality. This became the central issue in United States v. Kagama (1886),23 one of the most important Indian law decisions issued by the Court. Kagama was a Hoopa Indian (northern California) convicted of killing another Indian on the Hoopa Reservation. Kagama and his attorneys argued that the Major Crimes Act was unconstitutional and should be voided because Congress’s Commerce Clause power did not authorize it to enact laws regulating Indian-on-Indian crimes occurring within Indian Country. The Supreme Court upheld the constitutionality of the Major Crimes Act, but rejected both the Commerce Clause and Property Clause arguments suggested by the government’s lawyers. Instead, the Court denied tribal sovereignty by fashioning a set of arguments grounded in federalism and U.S. nationalism and steeped in ethnocentrism. The Court embraced geographical incorporation: because the United States “owned” 2223 Stat. 362, 385 (1885). 23118 U.S. 375. Cambridge Histories Online © Cambridge University Press, 2008 226 David E. Wilkins the country, and because Indians lived within its boundaries, the United States could extend an unbridled power over Indians, based on the doctrine of discovery. The justices also embraced Indian wardship: Indian dependency and helplessness necessitated unlimited exercise of federal guardianship – what would later be termed “plenary” power. In other words, the Court determined that, based on its ownership of land, the federal government had virtually unfettered power over tribes. And in declaring Indians “wards of the nation,” indigenous peoples had been rendered subject to a plenary Congressional authority to protect and defend its “dependents,” exercised as Congress saw fit. Ironically, in Kagama the Supreme Court held a federal statute applying to Indians to be constitutional while rejecting the only available constitutional clauses that would have rendered it constitutional. That the court could, in effect, step outside the Constitution to hold a law constitutional is quite a remarkable feat. Why it did so, however, is clear. It sought to legitimize the Congressional policy of coercive assimilation and acculturation of tribal citizens into the American polity. The Court developed the extra-legal sophistry of unbounded proprietary authority and wardship to further the assimilative process while at the same time acting to “protect” tribes from uninvited and intrusive state attacks on tribes and their dwindling resources. Having addressed the subject of criminal jurisdiction, the federal government then acted on the question of extending federal citizenship to Indians. Many of the “Friends” – reformers and policymakers – believed that it was unfair to impose Euro-American norms of criminality and punishment without allowing Indians access to the full benefits and responsibilities accompanying American citizenship. Hence they advocated extending the franchise to Indians. The first major test of whether the United States was prepared to follow the reformers’ lead came in Elk v.Wilkins (1884).24 John Elk had voluntarily emigrated from his tribe (his tribal affiliation was never mentioned) and moved to Omaha, Nebraska. After a time, Elk went to register to vote, claiming that the Fourteenth and Fifteenth Amendments gave him U.S. citizenship. His registration application was rejected by Charles Wilkins, the city registrar, on the grounds that Elk, as an Indian, was not a citizen of the United States. The case found its way to the Supreme Court, where Elk’s constitutional claims were rejected. As an American Indian he belonged to an “alien nation.” The majority maintained that, even if individual Indians met basic citizenship requirements, as Elk had done, they still could not be enfranchised unless Congress passed a law authorizing such a change in their legal standing. 24 112 U.S. 94. Cambridge Histories Online © Cambridge University Press, 2008 Federal Policy, Western Movement, and Consequences 227 Congressional reaction to Elk was swift, though ill focused. Some reform groups argued that the solution to the Indian “problem” was unfettered and immediate citizenship. Others declared that U.S. citizenship, a valid goal, should be a gradual process tied to individualized property ownership. The two camps compromised (at Indian expense) by embracing the allotment of much of Indian Country. The General Allotment [Dawes] Act,25 passed the year after the Supreme Court’s Elk decision, intensified Congress’s cultural and proprietary assault on indigenous peoples. Most observers suggest that this act – actually a detailed policy directive – and the multiple amendments and individual allotting agreements passed in its wake over the next two decades, constitute the single most devastating federal assault on indigenous nations. Most white philanthropists, and those federal lawmakers concerned to maintain the nation’s position as a liberal and democratic polity, agreed that tribal social structures founded on common stewardship of land were the major obstacle to Indians’ “progress” toward civilization. These “Friends” firmly believed in the need to break up the reservations, distribute small individual plots of land to tribal members, and then require the allotted Indian to adapt to Euro-American farming life. The allotments themselves were to be held in trust. For twenty-five years they could not be sold without express permission of the secretary of the interior. This was deemed a sufficient period for the individual Indian to learn the arts of a civilized yeoman farmer. U.S. citizenship accompanied receipt of the allotment. Tribal land not allotted to members was declared “surplus.” This “extra” land was sold to non-Indians, whose settlement among the Indians, it was believed, would expedite their acquisition of white attitudes and behavior. Tribal lands, already dramatically depleted through land cession treaties and agreements, were further reduced by the allotment policy and the subsequent individual allotting agreements. The allotment policy was, in the words of President Theodore Roosevelt, “a mighty pulverizing engine to break up the tribal mass.” By 1934 when it was finally stopped, 118 of 213 reservations had been allotted, resulting in the loss of another ninety million acres of tribal land. What then ensued was in many ways even worse – removal of allotments from trust-protected status by forced fee patent, sale by both Indian landowners and the United States, probate proceedings under state inheritance laws, foreclosure, and surplus sale of tribal lands. Fundamentally, the entire allotment and post-allotment program had disastrous economic and cultural consequences for native peoples, which are still felt by both allotted tribes and individual Indians today. 25 24 Stat. 388 (1887). Cambridge Histories Online © Cambridge University Press, 2008 228 David E. Wilkins VI. THE UNIQUE LEGAL STATUS OF THE PUEBLOS AND THE FIVE CIVILIZED TRIBES Tribal nations are uniquely constituted social, political, and cultural entities. As we have seen, the consistent failure to recognize that reality has meant that federal efforts to develop a coherent and consistent body of legal principles to deal with the tribes were never very successful. But there were exceptions. Not all tribes were brought under the federal umbrella or were viewed the same way by the federal government. Two groupings of aboriginal peoples considered “exceptional” and who became the focus of a great deal of Western law thus merit specific discussion: the Pueblo Nations of present-day New Mexico (actually twenty-two distinctive indigenous communities) and the so-called Five Civilized Tribes26 – the Cherokee, Chickasaw, Choctaw, Creek, and Seminole. The Pueblos The Pueblos are distinctive in part because of their particular culture and language and because of their long historical relationship with the Spanish and, later, the Mexican governments. Written agreements with Spain in the form of land grants, later acknowledged by the Mexican government, unquestionably affirmed Pueblo ownership, not just occupancy, of their lands. Pueblo land grants were both encompassed and recognized by the United States under the provisions of the 1848 Treaty of Guadalupe Hidalgo. One of the Hidalgo Treaty’s provisions specified that Mexican citizens might choose either Mexican or U.S. citizenship. The Pueblo Indians, by choosing to remain in their homeland, were said by some federal commentators to have implicitly accepted U.S. citizenship. This federal citizenship status was first affirmed by the Supreme Court in United States v. Ritchie.27 Pueblo connections to previous Spanish and Mexican authorities, their apparently enfranchised status, and their generally peaceful demeanor toward American settlers and the federal government raised the question whether the Pueblos were to be considered “Indian tribes” within the meaning of existing federal statutes, such as the 1834 Trade and Intercourse Act, which were designed to protect tribal lands from white encroachment. Because of the Pueblos’ ambiguous legal status and less confrontational 26 The phrase “civilized” became part of the Five Tribes after their forced removal to presentday Oklahoma. Once they resettled, the members of these nations made tremendous social and political changes within their societies and were soon labeled “civilized” to distinguish them from the so-called wild tribes of the Western plains area. 27 58 U.S. (17 How.) 525 (1854). Cambridge Histories Online © Cambridge University Press, 2008 Federal Policy, Western Movement, and Consequences 229 comportment, increasing numbers of Mexican-American and Anglo- American settlers became squatters on Pueblo land grants. The Pueblos resented these intrusions and, with the support of their Indian agents and the federal government as their trustee, sought to have the trespassers evicted. The matter came before the Supreme Court in United States v. Joseph (1877),28 in which the Court was asked to decide whether the Taos Pueblo constituted an Indian “tribe” under the meaning of the 1834 Intercourse Act. If they were, federal officials could expel the interlopers. If they were not, the government had no such authority, leaving the Pueblos to deal with the squatters as best they could by themselves. The court found that the Pueblos were far more “peaceful, industrious, intelligent, honest, and virtuous” than the neighboring “nomadic” and “wild” Navajo and Apache Tribes. Therefore, they could not be classed with the Indian tribes for whom the intercourse acts had been passed. Being far too “civilized” to need federal guardianship, the Pueblos could decide for themselves who could live on their lands. The justices opted not to address definitively the issue of whether or not Pueblo individuals were American citizens, but they did acknowledge that the Pueblos’ Spanish land grants gave them a title to their lands that was superior even to that of the United States. In 1913, a year afterNewMexico gained statehood, Pueblo status was dramatically reconfigured by the Supreme Court in United States v. Sandoval.29 So long as New Mexico had only territorial status, the Pueblos had been of peripheral concern to the federal government. With statehood, the subject of intergovernmental relations and Pueblo status required clarification. Congress had provided in New Mexico’s Enabling Act that the terms “Indian” and “Indian Country” were to include the Pueblos and their lands. These provisions were incorporated in the state’s constitution as well. Although a sizeable body of statutory and judicial law had held that the Pueblo were not to be federally recognized as Indians for purposes of Indian-related legislation, by 1913 the number of whites inhabiting Pueblo territory had increased strikingly, and federal policy was now focused on the coercive assimilation of all Indians. A general guardian/ward relationship had become the guiding policy assumption of many federal officials: all tribal people were viewed as utterly dependent groups in need of constant federal tutelage to protect them from unscrupulous whites and from their own vices. In Sandoval, the Supreme Court found that the civilized, sober, and industrious Pueblo culture of its 1877 decision had somehow become “primitive” and “inferior” and utterly dependent on the U. S. government. Relying on 2894 U.S. 614. 29231 U.S. 28. Cambridge Histories Online © Cambridge University Press, 2008 230 David E. Wilkins a legal paradigm steeped in paternalism and deferring to Congressional actions designed to protect the Pueblos from whites selling liquor, the Court went to extraordinary lengths to show that, although the Pueblo people remained “industrially superior” to other tribes, they were still “easy victims to the evils and debasing influence of intoxicants because of their Indian lineage, isolated and communal life, primitive customs and limited civilization.” The Supreme Court proceeded to reconfigure Pueblo legal status, holding that their alleged cultural debasement necessitated federal trust protection of their lands from unscrupulous liquor traders. The Five Civilized Tribes As important as the Pueblo were in the development of Federal Indian law, the Five Civilized Tribes were even more significant. Each of the Five Tribes and members of those nations had figured prominently in the federal government’s development of legal principles that enervated and devastated tribal sovereignty. The Cherokee Nation had been at the forefront of legal activity virtually from the outset – from the pivotal Marshall cases in the 1820s and 1830s to United States v. Wildcat in 191730 – but between 1870 and 1920, individual tribal members, particular tribes and combinations of the various five tribes were involved in far more federal cases than any other indigenous nation. Because they were perceived as more “civilized” than all other tribes except the Pueblo, and because they had insisted on fee-simple title to their lands in Indian Territory through the treaties they had signed under the provisions of the 1830 Indian Removal Act, the Five Civilized Tribes were originally exempted from the Major Crimes Act of 1885 and the General Allotment Act of 1887. But although the exemptions were treaty-endorsed and extra-constitutional they would not last indefinitely: a multitude of interests – territorial and state governments, individual settlers and land speculators, federal policymakers, railroad companies, and others – were all clamoring for access to the Five Tribes’ lands and resources and for control over the rights of the Tribes and their citizens. From the late 1880s to the early 1900s, when the combined force of these interests finally brought about the legal dismemberment of the governments of the Five Tribes and the allotment and subsequent dispossession 30 The Cherokee Nation or members of that tribe were involved in several important cases between these dates: The Cherokee Tobacco, 78 U.S. 616 (1871); Cherokee Nation v. Southern Kansas Railway Co., 135 U.S. 641 (1890); Talton v. Mayes, 163 U.S. 376 (1896); Stephens v. Cherokee Nation, 174 U.S. 445 (1899); Cherokee Intermarriage Cases, 203 U.S. 76 (1906); Muskrat v. United States, 219 U.S. 346 (1911); and Choate v. Trapp, 224 U.S. 665 (1912). Cambridge Histories Online © Cambridge University Press, 2008 Federal Policy, Western Movement, and Consequences 231 table 1. Major tribal entities represented in federal court cases involving tribal sovereignty and plenary power (1870–1920) Number of times tribes Tribes represented appear in cases A. 5 Civilized Tribes Civilized Tribes (Collectively)* 6 Cherokee† 9 Cherokee & one other tribe 10 Creeks 6 Creeks & one other tribe 6 Chickasaw 2 Chickasaw & one other tribe 12 Choctaw 2 Choctaw & one other tribe 8 Seminole 2 Seminole & one other tribe 6 Total Five Tribes: 69 B. All Other Tribes Sioux (all bands) 11 Chippewa (all bands) 8 Osage 4 Shawnee 3 Yakima 3 Others 9 Total Other Tribes: 38 Total All Tribes: 107 ∗ Collecti,vely means that all Five Tribes were directly involved. † In the majority of these cases an individual member of a tribe is a party, rather than a tribe. of much of their land, American law was deployed in ways that generally diminished but occasionally supported the nations’ sovereignties. In Cherokee Nation v. Southern Kansas Railway Company (1890), for example, the Cherokee national government challenged an 1884 congressional law that had granted the Southern Kansas Railway a right-of-way through Cherokee territory. Drawing on its federalism and paternalism paradigms, the Supreme Court held that the Cherokee could not prevent the federal government from exercising its powers of eminent domain to take Indian lands. Justice John Harlan, relying on the wardship and dependency phrases established in previous Court rulings, held that their “peculiar” and “inferior” status deprived them of enforceable rights to their property. Even the fact that the Cherokee Nation held fee-simple title was “of no consequence” Cambridge Histories Online © Cambridge University Press, 2008 232 David E. Wilkins to the Court because the Cherokee were “wards of the United States, and directly subject to its political control.”31 Although willing to dismiss the proprietary sovereignty of the Cherokee and to accommodate relentless Euro-American pressures for assimilation of Indians, when it came to certain practical effects of the twin forces of Westward expansion and federal plenary power the Court was willing to concede that the member nations of the Five Civilized Tribes might continue to exercise some degree of internal autonomy – internal criminal jurisdiction over their own members. In 1896, for example, on the same day the Supreme Court decided Plessy v. Ferguson,32 establishing the “separate but equal” doctrine that sanctioned state Jim Crow laws, the court held in Talton v. Mayes33 that the U.S. Constitution’s Fifth Amendment did not apply to the Cherokee Nation because their sovereignty existed prior to the Constitution and was dependent on the will of the Cherokee people, not of the American public. Harlan was the lone dissenter (as he was in Plessy). Decisions like Talton were residues of the old treaty paradigm that affirmed tribal nations’ political sovereignty, a status no other racial or ethnic minority group in the United States had ever possessed. But Talton was an aberration, and it was countered by much more powerful forces aimed at the inevitable absorption of indigenous lands, resources, identities, and rights into the American body politic. Here the guiding principle was federalism: whether the states or the national government would be the dominant entity authorized to ignore or curtail Indian treaty rights or sovereign authority. Take, for example, yet another 1896 case, Ward v. Race Horse,34 examining the state of Wyoming’s claim to enact and enforce fish and wildlife laws curtailing the treaty-reserved hunting rights of the Shoshone-Bannock of the Fort Hall Indian Reservation. In a major states’ rights decision, the Court ruled thatWyoming’s game regulations superseded the Shoshone-Bannocks’ 1868 treaty rights. Indian treaty rights were “privileges” that could be withdrawn or overridden by federal or state law. Specifically, Article Four of the 1868 treaty had been abrogated (implicitly) by Congress because it conflicted with Wyoming’s Admission Act. If Talton appeared to acknowledge the old treaty paradigm, Race Horse dealt it a paralyzing blow, not only vacating earlier case law but also elevating state authority over tribes’ vested rights and indeed over the federal government’s vaunted guardianship of the Indians. Having recast the juridical foundation for tribal-state relations and taking its cue from the coercive and absolutist tone of Congressional lawmakers, the Supreme Court moved to establish, clearly and unambiguously, the new reality of tribal-federal relations. The vehicle was LoneWolf v. Hitchcock 31135 U.S. 641, 657. 32163 U.S. 537. 33163 U.S. 376. 34163 U.S. 504. Cambridge Histories Online © Cambridge University Press, 2008 Federal Policy, Western Movement, and Consequences 233 (1903), a suit brought by the Kiowa, Comanche, and Apache nations against the secretary of interior in an effort to avoid having their lands allotted without consent.35 The tribes contended that allotment of their lands, as provided in legislation adopted by Congress in 1900, violated Article Twelve of the 1867 Treaty of Medicine Lodge. For the Court, Justice Edward D. White stated that the1867 treaty provision had been abrogated by the 1900 statute, even though he acknowledged that a purported agreement to modify the treaty provision on which the statute was loosely based lacked proper tribal consent. Lone Wolf, often called the Court’s second Dred Scott decision, was a nearperfect synthesis of the Court’s “plenary power” and “political question” doctrines. White inaccurately stated that Congress had exercised plenary authority over tribes “from the beginning” and that such power was “political” and therefore not subject to judicial review. These statements were merely judicial rationalizations, but they were in line with the reigning policy toward Indians embraced by the federal government: Indians were dependent wards subject to a sovereign guardian – the federal government. White attempted to camouflage the blow by describing the government’s actions as those of a “Christian people” confronted with the travails “of an ignorant and dependent race.” Congress, he said, must be presumed to act “in perfect good faith” toward the Indians. But Lone Wolf was a devastating assault on tribal sovereignty. The Court’s refusal even to examine Congressional acts that abrogated property rights established by treaty was particularly oppressive. Lone Wolf meant that treaties simply had no effect whenever Congress decided to violate their provisions. Yet, the hundreds of ratified treaties and agreements negotiated with the United States, not the Federal Constitution, constituted the foundation for most indigenous rights. In the company of so much else that had been transpiring in American law and policy, Lone Wolf confirmed a bitter reality: sporadically, Congress or the Court might acknowledge that their only legitimate powers vis- `a-vis tribal nations were those expressly outlined in the Constitution or agreed on with indigenous peoples. But in practice no branch of the federal government recognized any real limit to its powers. VII. PROGRESSIVISM, CITIZENSHIP, & INDIAN RIGHTS: 1904–1920 During the Progressive era, federal Indian policy, in particular those aspects overseen by the Office of the Commissioner of Indian Affairs, was increasingly managed by men who viewed themselves as dedicated guardians of 35 187 U.S. 553. Cambridge Histories Online © Cambridge University Press, 2008 234 David E. Wilkins Indian peoples and their ever-decreasing property base. These individuals, however, were confronted with contradictory federal goals: adamant commitment to the full-tilt assimilation of Indians and their remaining resources predicated on the idea that indigenous peoples should be free of governmental supervision; and an equally adamant commitment to the maintenance of hegemonic guardian/ward relations with Indians, with attendant micromanagement of indigenous lands and resources, leaving Indians and tribal governments in an internally colonial relationship. That said, federal Indian policymakers were somewhat influenced by the Progressive ideals of social activism, elimination of economic and political corruption, and greater citizen involvement in governance, and consequently they offered qualified support for policies that recognized a degree of Indian selfrule and, as important, granted grudging respect for indigenous culture. Support for Indian education, in particular, enabled students to remain at home instead of being sent to distant boarding schools. The first two decades of the twentieth century also saw sporadic outbursts of federal judicial and indigenous activism that, occasionally, resulted in protection for Indian treaty and property rights of both individual Indians and national tribes. These victories were achieved even though the paternalistic policy of assimilation remained entrenched. Still, the combination of staunch tribal resistance, federal officials willing to support a greater degree of tribal self-rule, and Indian students who had returned from boarding schools with ideas on how to improve their tribes’ standing in relation to the federal government and American society formed the basic building blocks for developments in the 1930s and beyond that would enable native nations to recover some of their proprietary, cultural, and political rights. During the Progressive period, the dominant federal themes of allotment, assimilation, guardian/ward status, and citizenship were supplemented by other ad hoc developments – affirmation of tribal sovereignty, protection of Indian treaty rights, and recognition of federal exclusive authority in Indian affairs. In 1904, for instance, the Supreme Court ruled in Morris v. Hitchcock36 that the Chickasaw Nation, one of the Five Civilized Tribes, could lawfully extend its taxing authority over whites who resided on their lands. A year later, the Court handed down two very different but related opinions on Indian rights. First, in In re Heff (1905),37 it held that Indian allottees became American citizens once their allotments had been approved. Therefore, federal laws that prohibited the sale of liquor to Indians were invalid – allotted Indians could buy and sell liquor as freely as any other American. The Commissioner of Indian Affairs admitted that the decision was “eminently logical,” given prevailing federal Indian policy; he nonetheless 36194 U.S. 384. 37197 U.S. 488. Cambridge Histories Online © Cambridge University Press, 2008 Federal Policy, Western Movement, and Consequences 235 warned that it “places the ignorant, incapable, and helpless Indian citizens at the mercy of one class of evil doers.”38 Congress reacted to Heff by passing the Burke Act, circumventing the Heff principle without entirely overthrowing it by withholding federal citizenship from allotted Indians for the duration of the twenty-five year trust period or until allottees secured a patent in fee (a certificate like a deed vesting legal ownership) to their allotment. The secretary of interior was granted authority to issue patents in advance of these statutory qualifications if, in his sole opinion, the Indian allottees were competent and capable of managing their own affairs. Congress presumably intended secretarial discretion to be used in a reasonable and not arbitrary fashion. In fact, the act led to the rapid alienation of much Indian allotted land. As Vine Deloria, Jr. and Clifford M. Lytle have put it, “Citizenship, thereupon became a function of the patent-in-fee status of land and not an indication that Indians were capable of performing their duties as citizens.” The second major ruling in 1905 was United States v.Winans.39 This was the first case to arrive at the Supreme Court calling on the judiciary to interpret a common treaty provision reserving to a number of tribes in the Northwest their rights to fish at places of historical significance. The Court ruled (White dissenting) in support of tribal fishing rights reserved through treaty provisions. For the Court, Justice Joseph McKenna recited one of the more popular treaty rights doctrines – that treaties should be interpreted the way Indians would interpret them. A treaty must be construed as “that unlettered people” would have understood it since it was written in a foreign language and was drafted by a military power that was superior to that of tribes. Second, the Court dramatically reaffirmed federal supremacy over the states in certain areas and weakened the equal footing doctrine, which held that newly admitted states were on an “equal footing” with the original states in all respects, especially regarding sovereignty and political standing. The Court declared that it was within the power of the United States to preserve for native peoples their remaining rights such as fishing at their usual places, holding that this was not an unreasonable demand on a state. Third, and most important, McKenna announced the reserved rights doctrine, by which tribes retained all rights and resources not specifically ceded in treaties or agreements. McKenna’s opinion came a mere two years after the devastating LoneWolf ruling in which the Court had clearly deprived tribes of their treaty-reserved property rights. How should this disparity be explained? A pragmatic reading of LoneWolf suggests that the Court was implicitly acknowledging that 38 United States Commission of Indian Affairs, Annual Report (Washington, DC, 1906), 28. 39 198 U.S. 371. Cambridge Histories Online © Cambridge University Press, 2008 236 David E. Wilkins many whites had already established homesteads on the tribes’ claimed lands. Relocating these non-native squatters, although perhaps the proper legal action, would have created massive political and economic problems for the state and the squatters, and also for the federal government (notably the president, who had already authorized settlement). In justifying Congressional confiscation of tribal reserved treaty lands, the Court had also baldly added that, once “civilized” and “individualized,” Indians simply would not need all the land reserved to them. Winans was much less threatening. It involved no major national political issues. No white had to be removed nor was the power of the president or of Congress at stake or even being challenged. At issue was the supremacy of a federally sanctioned treaty over a state’s attempts to regulate resources covered by the treaty. First, the Court appeared to understand that fishing represented far more than a simple commercial enterprise for the Yakima Nation – in a very real sense it was their entire life. Second, to allow a state regulatory authority over activities guaranteed by treaty could have gravely injured the status of treaties as the supreme law of the land, in effect privileging state sovereign powers over those of the federal government.Winans, therefore, was a crucial and timely acknowledgment that a tribe’s sovereign property and cultural rights, recognized and specifically reserved in treaties, warranted a measure of respect and would occasionally even be enforced by the federal government. In any case, there was no contradiction between the decisions in Winans and Lone Wolf. Both decisions underscored national authority. Lone Wolf reinforced the federal power to decide what was best for native people; Winans reinforced the supremacy of federal (and treaty) law over state law. But Winans does offer compelling evidence of a growing consciousness among some federal justices and policymakers – the continuing twin federal policy goals of land allotment and Indian individualization notwithstanding – that tribes were sovereign entities in possession of substantive property rights that were enforceable against states and private citizens, if not the federal government. Three years later, in Winters v. United States (1908),40 the reserved rights doctrine was extended – implicitly – to include the water rights of native peoples.Winters considered whether a white Montana landowner could construct a dam on his property that prevented water from reaching a downstream Indian reservation. The Supreme Court ruled against the landowner. First, the reservation in question had been culled from a larger tract of land that was necessary for “nomadic and uncivilized peoples”; second, it was both government policy and the “desire of the Indian” that native peoples be culturally and economically transformed and elevated from a “nomadic” 40 207 U.S. 564. Cambridge Histories Online © Cambridge University Press, 2008 Federal Policy, Western Movement, and Consequences 237 to an “agrarian” lifestyle; third, transformation could only occur if tribal lands were severely reduced in size, making them more amenable to agricultural pursuits (and precluding alternatives); finally, since the lands were “arid,” they would be agriculturally useless without adequate irrigation. The Court’s four points were not enunciated as law, but they recognized the reality of history and indicated the Court’s capacity to generate plausible arguments to protect precious tribal reserved rights. The court also cited the Indian treaty rule of interpretation, declaring that any ambiguities in the document should be resolved in the Indians’ favor. The equal footing argument on which the landowner had relied was also dismissed, the Court noting that it would be strange if, within a year of the reservation’s creation, Congress, in admitting Montana to statehood, would have allowed the Indians to lose their water rights, particularly since it was the government’s policy to force Indians to adopt an agrarian lifestyle. In effect, the Court was saying that, when the United States entered into diplomatic relations with tribes or when it unilaterally created reservations, it appeared to be guaranteeing tribes the water necessary to provide for their needs, present and future. In both Winans and Winters the federal government acted “on behalf of” or as the “guardian” of these two tribal nations. This was laudable in one sense, but also raised the important question of who actually “won” in these rulings: the federal government or Indian tribes? In addition to litigation for the protection of vital natural resources – fish and water – most Indian legislation and litigation of this period, much of it involving amendments and subsequent interpretations of those amendments to the General Allotment Act, arose from a powerful determination on the part of the federal bureaucracy to maintain a vague form of trust protection for Indian property. Rather than acknowledging and affirming complete Indian ownership of these still dwindling resources, Indians were treated as mere attachments to their lands, which meant that the Interior Department’s policies and programs often conflicted with policies of the Congress aimed at facilitating Indian self-improvement.41 It should also be noted that Indians remained largely marginalized from the public policy process in virtually every era and arena thus far examined except one – claims against the federal government taken before the Court of Claims that had been established in 1855. Tribes had begun to file suits shortly after the court was established. In 1863 Congress amended the law to deny the right to file lawsuits to Indian tribes with treaty claims. It would not be until 1920 that a number of bills were introduced, at the behest of 41Vine Deloria, Jr., “The Evolution of Federal Indian Policy Making,” in Vine Deloria, Jr., ed., American Indian Policy in the Twentieth Century (Norman, OK, 1985), 248. Cambridge Histories Online © Cambridge University Press, 2008 238 David E. Wilkins individual tribes and friendly congressmen, that allowed some tribes to sue the government in the Court of Claims for monetary compensation over lands that had been taken or over treaty violations. However, tribes still had to secure Congressional authorization before they could file, which required a significant amount of lobbying and a sympathetic Congressional member or delegation to advocate on their behalf. Of course, tribes were virtually without any political or economic power during these years, and they were largely at the mercy of the Bureau of Indian Affairs’ personnel who had dominated their lives and property since the 1880s. The Department of Interior itself frequently tried to prevent the introduction of Indian claims bills because it feared that the claims process would uncover evidence of rampant bureau incompetence and malfeasance then plaguing the agency. Eventually, Congress authorized an estimated 133 filings. In the actions that resulted, tribes won monetary recoveries in less than one-third of the cases. While some individual tribes pursued tribal specific claims against the United States, broader intertribal and pan-Indian interest groups were also being formed in the early 1900s to pursue Indian policy reform, Indian religious freedom, and improvements in indigenous welfare. The Society of American Indians (SAI) was organized in 1911 at Ohio State University. SAI’s founding was triggered by the experiences, both positive and negative, of Indian graduates of the federal government’s boarding schools started in the 1870s. In its form, leadership, and goals, SAI was similar to contemporary white reform organizations and to the developing African American movements of the Progressive era. Its most dynamic leaders, including Charles O. Eastman and Arthur C. Parker, were largely well-educated middle-class Indians whose objectives included lobbying for a permanent court of claims, improving health care, promoting self-help, and fostering the continued assimilation of Indians while encouraging racial justice. In Alaska, two gender-based native organizations were also born during this period – the Alaska Native Brotherhood, founded in 1912, and the Alaska Native Sisterhood founded in 1915. These were the first significant political and social intertribal organizations in Alaska before statehood. In their early years, the two organizations focused primarily on self-help and full American citizenship rights for natives. They also sought protection of their natural resources. Two other indigenous movements affirmed the upsurge in Indian activism. First, peyote religion grew phenomenally from the late 1800s to the early 1900s. A truly intertribal faith, peyote use helped its practitioners improve their health and combat the ravages of alcohol. The Native American Church of Oklahoma was formally incorporated in 1918. Second, the Pueblo peoples of New Mexico continued their individual and collective Cambridge Histories Online © Cambridge University Press, 2008 Federal Policy, Western Movement, and Consequences 239 struggle to protect their remaining lands from non-Indian squatters. The adverse effects of the Sandoval decision of 1913 had spurred their collective political mobilization, culminating in 1919 in formation of the All Indian Pueblo Council. Citizenship The issue of American citizenship for Indians bedeviled federal lawmakers during the Progressive years. As we have seen, the Supreme Court’s ruling in Heff that Indian allottees automatically became U.S. citizens and thus were no longer subject to federal plenary authority had been legislatively thwarted by Congress with the enactment of the Burke Act in 1906. Subsequent Supreme Court rulings narrowed Heff, and it was finally expressly overruled, in dramatic fashion, in United States v. Nice (1916). Nice affirmed what many federal lawmakers had been advocating for some years, namely that Indian citizenship was perfectly compatible with continued Indian wardship. According to Justice Willis Van Devanter, Congressional power to regulate or prohibit liquor traffic with Indians derived both from the Commerce Clause and from extra-constitutional sources, namely the dependency relationship that existed between Indians and the United States. It rested with Congress, said Van Devanter, to determine when or whether its guardianship of Indians should be terminated. “Citizenship,” Van Devanter declared, “is not incompatible with tribal existence or continued guardianship, and so may be conferred without completely emancipating the Indians or placing them beyond the reach of congressional regulations adapted for their protection.”42 Nice was decided three years before American Indian veterans of World War I were given the opportunity to attain U.S. citizenship in 1919, and eight years before Congress enacted the general Indian citizenship law of 1924, which unilaterally declared all remaining non-citizen Indians to be American citizens. Both the veterans’ law and the general citizenship law provided that the extension of citizenship would not affect preexisting treaty-based Indian property rights. It became evident, however, that Indians were not full citizens, notwithstanding Congressional declarations to that effect. The citizenship they had secured, whether under prior treaty or later Congressional statute, was attenuated and partial. The provisions of both the 1919 and 1924 laws guaranteeing prior property rights of Indians as citizens of their own nations proved insufficient to protect the cultural, political, civil, and sovereign rights of individual tribal citizens. And since tribes, qua tribes, were not enfranchised, they remained beyond the pale 42 241 U.S. 591, 598. Cambridge Histories Online © Cambridge University Press, 2008 240 David E. Wilkins of constitutional protection from the federal government. Paternalistic in tone and substance, Nice had mandated perpetual federal guardianship over citizen Indians, still considered incapable of drinking liquor without federal supervision and approval. Nice was and remains a legal travesty. Indians were consigned to a continuing legal and political limbo: they were federal and state citizens whose rights were circumscribed by their status as “wards.” For tribal members to receive any non-tribal rights or privileges as citizens, they often had to exhibit an intent to abandon tribal identity. At that point they might – though not necessarily – be considered worthy or “competent” to receive American political rights and privileges. The question of what precisely Indians gained with American citizenship and of whether the United States even had constitutional authority to declare Indians to be citizens unilaterally without their express consent remain problematic. Meanwhile, Congress, ever the insistent guardian, acted in 1921 to formalize and provide a comprehensive funding mechanism for Indians, their seemingly perpetual wards. Prior to 1921, Congress and the Bureau of Indian Affairs had expended monies for Indians largely on the basis of treaty provisions or of specific statutes that addressed particular tribal needs. The Snyder Act,43 however, granted general authority to the BIA under the Interior Department’s supervision to spend Congressionally appropriated money “for the benefit, care, and assistance of the Indians throughout the United States.” This money was to be used for a wide variety of purposes – health and education, resource projects such as irrigation, and so forth. This was the first generic appropriation measure designed to meet the tremendous socioeconomic needs of Indians wherever they resided. The Indian Reorganization Act Congress in the 1920s was unwilling to concede that its broad, variegated assimilation campaign was a failure, even though continual tribal complaints and white interest group criticism of federal Indian policies seemed to show otherwise. But events had already been set in motion that would culminate in a wholesale reordering of priorities, under the 1934 Indian Reorganization Act (IRA).44 The IRA expressed Congress’s explicit rejection of the allotment policy and the harsh coercive assimilation tactics that the BIA had used since the 1880s. The legislation was drafted by Felix Cohen under the supervision of John Collier, who had spent considerable time in New Mexico fighting for Pueblo land and water rights and who would later become Commissioner of Indian Affairs. The IRA had several 4342 Stat. 208. 4448 Stat. 984 (1934). Cambridge Histories Online © Cambridge University Press, 2008 Federal Policy, Western Movement, and Consequences 241 objectives – to stop the loss of tribal and individual Indian lands, provide for the acquisition of new lands for tribes and landless Indians, authorize tribes to organize and adopt a constitutional form of government and form corporations for business purposes, and establish a system of financial credit for tribal governments and individual business entrepreneurs – but was also beset by severe weaknesses. It did little to clarify the inherent political status of tribes. It failed to devise any real constraints on federal power, particularly administrative power, vis-`a-vis tribal nations and their citizens. A critical, if uneven, attempt by the federal government to rectify some of the damage caused by the more horrific policies and laws it had imposed on native nations for nearly half a century, the IRA produced mixed results, which continue to affect tribal nations today. Most dramatically, the IRA was effective in putting a halt to the rapid loss of indigenous land. It reminded all parties that tribal peoples were substantially different from other minority groups because they continued as cultural and political nations with inherent powers of self-governance and distinctive cultural and religious identities. But the IRA’s avowed goal of energizing native self-rule was not fully realized. Some tribal nations took the opportunity to create tribal constitutions and establish bylaws. However, their documents had of necessity to include clauses that reminded tribal leaders of the discretionary authority of the secretary of the interior to dictate policy to tribes and overrule tribal decisions. Tribes that resisted efforts to institutionalize their governing structures along the constitutional lines suggested by federal officials were sometimes pressured to acquiesce by Collier and his associates. Beyond the IRA The conclusion ofWorldWar II and John Collier’s resignation as Commissioner of Indian Affairs in 1945 signaled the beginning of another profound shift in federal Indian policy and law – from tribal self-rule to termination of the federal government’s trust responsibilities toward a number of tribes. Termination was officially inaugurated as policy in 1953 by a joint resolution of Congress. Ironically, liberals supported termination as a means to free tribal peoples from racially discriminatory legislation and BIA regulations, whereas conservatives viewed it as a means to relieve Indians from the “retarding” effects of the IRA’s policies, which were interpreted as hampering Indian rights as American citizens. American Indians had their own views on termination. Some tribes believed that it would mean full emancipation and would create opportunities for them to thrive politically and economically; others suspected that termination was a maneuver by which the United States would “legally” disavow its historic treaty and Cambridge Histories Online © Cambridge University Press, 2008 242 David E. Wilkins trust obligations, clearly violating the inherent rights of tribes and the federal government’s commitment to the rule of law. Termination was accompanied by a relocation program that sent thousands of reservation Indians to major urban areas. Congress also enacted Public Law 280, which authorized several states to extend criminal and some civil jurisdiction over Indians and Indian Country. All proved controversial. By the 1960s, grievances arising from termination, relocation, and the extension of state jurisdiction had combined with the influence of the broader civil rights movement and the environmental movement to fuel a surge in activism both in urban areas and on reservations. The resurgence of native pride, indigenous activism, the appearance of a generation of legally trained Indians, and shifts in personnel on the Supreme Court and in Congress brought a series of important political, legal, and cultural victories in native nations’ struggle to regain a genuine measure of self-determination. Much of the 1960s indigenous revival arose out of events like the fishing rights battles of the Northwest tribes, the ideas generated by Indian leaders at the American Indian Chicago Conference in 1961, the birth and subsequent rapid expansion of the American Indian Movement in 1968, the Alcatraz takeover in 1969, the Trail of Broken Treaties in 1973, and the Wounded Knee occupation, which also occurred in 1973. Congress responded to these developments by enacting the Indian Self-Determination and Education Assistance Act in 1975, among other laws. But these native victories engendered a vicious backlash among disaffected non-Indians and some state and federal lawmakers that led to Congressional and judicial attacks aimed at further abrogating treaties, reducing financial support for tribal programs, and other punitive responses. The Supreme Court also began to issue rulings that negated or significantly diminished tribal sovereignty, notably Oliphant v. Suquamish (1978), which directly limited the law enforcement powers of tribes over non-Indians committing crimes on Indian lands. Since Oliphant, tribes have witnessed a parade of federal actions that at times have supported tribal sovereignty (the Indian Self-Governance Act of 1994) and at other times significantly reduced tribal powers, especially in relation to state governments (the Indian Gaming Regulatory Act of 1988). More distressing for tribes was the Rehnquist Court’s fairly consistent opposition to inherent authority, which has been continued by the Roberts Court. Tribal governments have had their jurisdictional authority over portions of their lands and over non-Indians effectively truncated, and the federal trust doctrine has been defined very narrowly in a way that reduces U.S. financial obligations to tribal nations and their citizens. In addition, the Supreme Court’s rulings have elevated state governments Cambridge Histories Online © Cambridge University Press, 2008 Federal Policy, Western Movement, and Consequences 243 to a nearly plenary position in relation to tribal governments and the U.S. Congress itself, without dislodging or reducing the long entrenched federal plenary power over tribes and their resources. Nevertheless, these have been dynamic times during which many native nations have made great strides in several arenas: cultural and language revitalization, land consolidation, and the development of more appropriate legal codes are notable examples. Gaming revenues have given tribes a small but seemingly secure foothold in the nation’s political economy. Tribes have also proven willing, through increased electoral participation, to engage in state and federal political processes in an effort to protect their niche in the market. CONCLUSION Two centuries of contact between indigenous nations and the United States have caused profound and irrevocable changes in the proprietary, sovereign, cultural, and legal rights of tribal nations, just as it has meant massive changes in the laws, policies, and attitudes of Euro-Americans as well. Sustained cultural interactions between Europeans and indigenous peoples in North America began, we have seen, with a measure of cooperative military and economic respect. But both Europeans and later Euro-Americans generally acted from a perspective that denied the full proprietary rights and cultural sovereignty of tribal nations. So, despite the existence of dual legal traditions at the outset, and a diplomatic record that formally acknowledged the separate legal and political traditions of native nations, Euro-Americans soon began to act in ways that generally offered little respect for the customs and legal traditions of Indian peoples. Euro-American legal traditions attained dominance over indigenous peoples in North America largely as a result of cultural ethnocentrism and racism. More instrumentally, Euro-American law facilitated U.S. westward expansion and settlement, as well as industrial development. The virtual exclusion of indigenous perspectives or customary legal traditions from U.S. legal culture after 1800 enabled American legal practitioners and policymakers to attain a hegemonic status vis-`a-vis tribal nations. Nevertheless, federal lawmakers and Supreme Court justices have occasionally acted to recognize indigenous rights and resources, as evidenced in land claims, sacred site access, and co-management of certain vital natural resources. The U.S. Supreme Court has tended to use one or some combination of three paradigms when called on to adjudicate disputes involving Indians: treaties, paternalism, and federalism. Not only the issues and tribes involved but also the diplomatic record, the relationship between the state and the federal governments, and ideologies of governance vis-`a-vis native peoples Cambridge Histories Online © Cambridge University Press, 2008 244 David E. Wilkins have interacted to determine at each moment how the Court would decide any given case. The relationship between tribes and the U.S. federal government continues to be without clear resolution. Further, because interracial and intercultural disputes are nearly always resolved in federal courts where legal principles like plenary power, the discovery doctrine, and the trust doctrine still lurk in the cases and precedents, tribes can never be assured that they will receive an impartial hearing. The United States has sometimes recognized and supported tribal sovereignty; at other times, it has acted to deny, diminish, or even terminate their sovereign status. Such indeterminacy accords imaginative tribal leaders and non-Indian leaders a degree of political and legal flexibility. Involved parties may successfully navigate otherwise difficult political terrain by choosing appropriate indigenous statuses that can benefit their nations and citizens. But it also deprives aboriginal peoples, collectively, nationally, and individually, of clear and consistent standing regarding the powers and rights they can exercise. Hostilities may have decreased, but cultural, philosophical, and political-legal tensions still cloud the relationship between tribal nations and the federal and state governments. Cambridge Histories Online © Cambridge University Press, 2008 8 marriage and domestic relations norma basch On the eve of the American Revolution, domestic relations law, as it would come to be called in the nineteenth century, encompassed a whole constellation of relationships between the male head of the household and the subordinates under his control. These included his wife, children, servants, apprentices, bound laborers, and chattel slaves, designated by William Blackstone as those in lifetime servitude. Although Blackstone did not create this conception of household relations, he incorporated it into his Commentaries on the Laws of England, the era’s most influential legal primer, where it appeared under the rubric of the law of persons. Based as it was on a belief in the fundamental inequality of the parties and the subordinate party’s concomitant dependency, the law of persons lay at the heart of subsequent challenges to domestic relations law in general and to marriage law in particular. By categorizing the law of husband-wife as analogous to other hierarchical relationships, it generated parallels that would become sites of contestation. According to the law of persons, both marriage and servitude were “domestic relations,” and both mandated a regime of domination and protection to be administered by the male head of the household. The law of persons cut a broad but increasingly anachronistic swath in the legal culture of the new republic and in the economic transition from household production to industrial capitalism. As a result, one change in domestic relations law over the course of the nineteenth century involved the gradual narrowing of the relations under its aegis. Whereas “family” had once comprehended the extended household profiled in the law of persons, by the time Anglo-Americans were reading the first editions of Blackstone, it tended to refer to a small kin group living under the same roof. Blackstone was in this instance already dated. The decline of apprenticeships, the increase in independent wage-earners, and the separation of home and work generated further changes. Although employers owned their employees’ labor, their legal relationship to free laborers gradually slipped from the category of domestic relations. Slavery, of course, was eradicated as a 245 Cambridge Histories Online © Cambridge University Press, 2008 246 Norma Basch legal category with the Civil War and Reconstruction. Yet, elements from the old paradigm of the extended hierarchical household continued to exert discursive power. The industrial employer drew on the preindustrial master’s claim to his servant’s personal services to buttress his own claim to authority over independent wage-workers. The correspondences between wifehood and servitude also remained popular. They were deployed not only by slaveholders eager to extol their benevolent dominion over their extended “families” but also by women’s rights advocates intent on decrying the wife’s degrading bondage. Still, in the long passage to legal modernity, domestic relations focused increasingly on marriage and parenting. The other critical shift in domestic relations law over the course of the century consisted of inroads into the male-dominated corporatism of marriage. By the end of the century both wives and children enjoyed a greater measure of legal individuality, children came more frequently under the protection of their mothers or the state, and divorce was on the rise. At the same time, a belief in the sanctity of lifelong monogamy and in the husband’s natural authority received renewed legal and rhetorical support while the drive to restrict birth control and abortion generated novel curbs on reproductive freedom. The end-of-the-century picture of domestic relations law, then, is ambiguous. Although the principle of male headship was clearly compromised by the challenges of prior decades, it continued to resonate in the treatises, legislatures, and courtrooms of the nation. As the byproduct of diverse concerns, temporary coalitions, and economic exigencies, the changes in domestic relations law did not so much dismantle the principle of male headship as modify it, often in favor of the state. The changes, moreover, were complicated by jurisdictional diversity and doctrinal inconsistency. Thanks to federalism, the states controlled family governance, and in accord with Franco-Spanish legal models as well as the dominant English model, they created marital regimes that could differ dramatically from place to place. Given the ambiguity, diversity, and inconsistency of state marital regimes, any effort to chart change nationally, much less assess its relation to the gender system, is fraught with problems. The web of affection and reciprocity that defined the marriage bond for most Americans did not encourage a hard calculus of gendered power. But although husbands and wives did not typically regard themselves as winners or losers in these deeply gendered legal regimes, it is entirely appropriate for us to sift and weigh the gendered distribution of marital power. The legal institution of marriage, after all, was one of the preeminent arbiters of gender roles, and it was reshaped by the same great political, economic, and social convulsions as other areas of law. Yet while revolution, industrialization, and the burgeoning marketplace left their impress on the contract of marriage as surely as Cambridge Histories Online © Cambridge University Press, 2008 Marriage and Domestic Relations 247 on commercial contracts, the strict demarcation of marriage from other contracts made for very different results. In a century that elevated the concept of contract to unprecedented heights, marriage was a contract, as jurists were fond of pointing out, unlike any other. The emblem of harmony and stability in a shifting, competitive world, marriage was the irrevocable contract that made all other contracts possible. The separation of the marriage contract from other kinds of contracts was critical to the legal formation of marriage as an institution. It not only enabled the state to dictate the terms of marriage to potential spouses as opposed to having them set their own terms, but it relegated marriage to a realm that was rhetorically distinct from the world of commerce and politics. The separation of the marriage contract, however, was never complete. Feminist critics of contractualism have argued that because the marriage contract silently underpinned the social contract, that mythical agreement marking the founding of modern civil society, it at once concealed and provided for the subordination of women to the political fraternity of men. Thus the classic story of the social contract, which is a story of freedom, repressed the story of the marriage contract, which is a story of subjection. How, though, could a liberal democracy with its ethos of self-ownership and contractualism and its rejection of monarchy and arbitrary power continue to invest authority in the independent white, male head of the household at the expense of the persons deemed subordinate to him, including the person of his wife? In the long run, it could not. In the shorter run – over the course of the nineteenth century – it could do so, but only with strenuous cultural work and considerable legal innovation that masked and checked the challenges liberalism presented to the patriarchal family. The story of domestic relations law, in short, is one of the evolving tensions between male headship with its protections and constraints on the one hand and liberal individualism with its hazards and privileges on the other. We begin with the tensions unleashed by revolution. I. MALE HEADSHIP, FEMALE DEPENDENCE, AND THE NEW NATION In 1801 James Martin, the son of loyalist parents, sued the state of Massachusetts for the return of his deceased mother’s confiscated property. During the Revolution his mother, Anna Gordon Martin, and his father, William Martin, had fled Boston for the British-held New York City, and with the defeat of the British in 1783, they moved their household to England. Their loyalty to the Crown, however, came at a price. Anna, the daughter of a wealthy Massachusetts merchant and landowner, had inherited Cambridge Histories Online © Cambridge University Press, 2008 248 Norma Basch real estate that was sold at auction under the provisions of the state’s wartime confiscation statute. Because William Martin had served as an officer with the British forces, neither his allegiance to the Crown nor his defiance of the patriot cause was ever in doubt; he was listed by the state among persons who had joined the enemy. But the confiscated property had belonged to Anna, not William, and her defiance of the new political order was not as clear. At issue in the case launched by the son was the time-honored principle of male headship and female subordination incorporated into the Anglo- American law of husband and wife. The case represented a pivotal moment in the post-Revolutionary redefinition of marriage. Was the principle of male headship, which comported with both the precepts of Christianity and the pre-Revolutionary gender system, altered in any way by revolution and war? Did Anna flee the country withWilliam as a result of a wife’s marital obligation to subject herself to her husband, or did she act as an independent sympathizer of the loyalist cause? Deeming the confiscation of the wife’s property an improper and overly broad reading of the state’s wartime statute, James Martin’s attorneys supported the first scenario, which assumed the husband’s coercive power over his wife. In the traditional view of marriage on which the core of their case rested, a wife’s primary allegiance was to her husband, who mediated any relationship she may have had to the state and to the world at large. Anna, in this view, wa,s without volition regarding her political options. If William had commanded her to leave, she had no choice but to obey him. Attorneys for the state of Massachusetts working to validate the confiscation and sale of Anna’s property supported an alternative scenario that assumed her independence in choosing to leave, thereby investing her with a direct relationship to the state. Their argument suggests the radical possibilities of applying anti-patriarchal ideology to the law of husband and wife. In Massachusetts, where the state also withheld dower, the so-called widow’s thirds, from wives who had fled, the exigencies of revolution seem to have unsettled the common law unity of husband and wife, the reigning paradigm for marriage. The Martin case, with its competing paradigms of marital unity and marital individuality, provides a framework for considering the contradictions unleashed by revolution and prefigures the pressures a nascent liberalism would exert on the patriarchal model of marriage. In the eyes of the law, the husband and wife were one person, and that person was the husband. This was the renowned legal fiction of marital unity from which the wife’s legal disabilities flowed. Inasmuch as the wife’s legal personality was subsumed by the husband, she was designated in the law-French of the common law as Cambridge Histories Online © Cambridge University Press, 2008 Marriage and Domestic Relations 249 a femme covert, or covered woman, and her status in marriage was called her coverture. But in the eyes of the Massachusetts confiscation statute, husband and wife were two persons with individual choices regarding the Revolutionary cause. Since attorneys for the state along with the legislators who drafted the confiscation statute could envision wives as independent actors, we can see how the anti-patriarchal impulses of the Revolution might be directed toward marriage. That all four judges of the Massachusetts Supreme Judicial Court voted to sustain James Martin’s claim against the state on the basis of his mother’s coverture, however, exemplifies the widespread acceptance of the English common law model of marriage by post-Revolutionary jurists. The English common law model of marriage as it was upheld by the Massachusetts judiciary and as it had been outlined in Blackstone’s Commentaries was much more than an emblem of the patriarchal order. It encompassed those functions of marriage that judges and legislators would embrace long after the Martin case. These included the definition of spousal obligations, the regulation of sexual desire, the procreation of legitimate children, and the orderly transmission of property. But although such earthy and materialistic concerns have figured in family law from Blackstone’s day to the present, Blackstone’s reading of marriage was problematic for early nineteenth-century Americans, who were often uncomfortable with his rationales for its legal rules. His blunt insistence that the primary purpose of marriage was the creation of lawful heirs slighted the personal happiness they associated with matrimony and the harmonious influence they believed it exerted on the whole society. And while they affirmed the principle of male headship, they could no longer do so on precisely the same terms Blackstone had used in the law of persons. The striking ambivalence in nineteenth-century responses to Blackstone’s vision of marriage is instructive. Commentators could not accept him without qualifications and caveats, but neither could they reject him entirely. Editors writing glosses on the Commentaries and jurists creating new treatises expressed the need to unshackle marriage somehow from the harshest provisions of the common law. A growing interest in the welfare of illegitimate children, for example, was at odds with Blackstone’s celebration of the common law’s capacity to bar the inheritance of bastards. Those who were distressed with the wife’s legal disabilities confessed incredulity at Blackstone’s insistence that the female sex was a great favorite of the laws of England. Yet critics typically envisioned changes in the legal status of married women as exceptions to the provisions of coverture, which functioned as an enduring component in the definition of marital obligations. Blackstone’s depiction of the law of husband and wife, then, continued to Cambridge Histories Online © Cambridge University Press, 2008 250 Norma Basch serve as a blueprint for understanding the rudiments of the marriage contract, and the rudiments of the marriage contract were strikingly unequal with regard to rights and responsibilities. The wife’s legal disabilities as outlined in the Commentaries were formidable. Any personal property she brought to marriage belonged to her husband absolutely while the management of her real property went to him as well. She could neither sue nor be sued in her own name nor contract with her husband, because to do so would constitute the recognition of her separate legal existence. Once married and under her husband’s coercion, she was no longer even responsible for herself in criminal law. Indeed, the only crack in the bond of marital unity according to Blackstone lay in a theory of agency derived from the wife’s capacity to act on behalf of her husband; because the husband was bound to supply her with “necessaries,” she could contract with third parties in order to secure them. The husband’s responsibilities in this paradigm of male headship were no less formidable than the wife’s disabilities. In addition to the support of the family, they included any debts his wife brought to the marriage. But while the husband’s responsibilities were entirely in keeping with nineteenthcentury notions of manliness, his corresponding power over the person and property of his wife was not easily reconciled with a companionate model of marriage. If the wife was injured by a third party, the husband could sue for the loss of consortium; she, by contrast, enjoyed no corresponding right since the “inferior” owned no property in the company or care of the “superior.” Similarly, because a wife acted as her husband’s agent, the husband was responsible for her behavior, and just as he had a right to correct an apprentice or child for whom he was bound to answer, so must he have a comparable right to correct his wife. Blackstone’s insistence that wife beating was an ancient privilege that continued to be claimed only by those of the lower ranks could not have provided much solace to those who found it antithetical to the notion of marriage as an affectionate partnership. Post-Revolutionary Americans responded selectively to this legal model of marriage in which the wife was obliged to serve and obey her husband in return for his support and protection. Some elements, like the husband’s obligation to support and protect the wife, coalesced with the goals of an emerging white middle class devoted to a breadwinner ethos. Others, like the husband’s right to chastise the wife, conflicted with enlightened sensibilities. And still others, like the wife’s dower, her allotment from her husband’s property if he predeceased her, emerged as an impediment to the sale of real estate and the flow of commerce. As the problem of dower suggests, the provisions outlined by Blackstone for intestate succession, which spelled out custody rights as well as property rights and carried the logic of coverture into the end of marriage, could be Cambridge Histories Online © Cambridge University Press, 2008 Marriage and Domestic Relations 251 controversial. If the wife predeceased the husband and had a surviving child, the husband continued to hold all her realty as a tenant by the curtesy of England, a right known as the husband’s curtesy. As the natural guardian of the children, he was entitled to all the profits from her realty. The only circumstance in which the deceased wife’s realty reverted to her family of origin while the husband was alive was if there were no living children. Although the husband’s right to the custody of the children was automatic, a wife who survived her husband could lose custody by the provisions of his will. As for her interest in his property, her dower consisted of a tenancy in only one-third of his realty. Still, even though dower was less generous than curtesy, it was one place where the common law vigorously protected the wife’s right to some support. During the marriage, the wife’s dower right loomed over the husband’s realty transactions and provided her with some leverage. Because a portion of all the realty a husband held at marriage or acquired during the life of the marriage was subject to the wife’s dower, he could not sell it without her consent and separate examination, a procedure designed to ensure she was not coerced into giving up potential benefits. Dower was a fiercely protected, bottom-line benefit of the English common law. A husband could exceed the terms of dower in his will, but if he left less than the traditional widow’s thirds, the widow could elect to take dower over the will, a prerogative known as the widow’s right of election. Here in broad strokes was the model of male headship and female dependence embedded in the law of persons. The husband adopts the wife together with her assets and liabilities and, taking responsibility for her maintenance and protection, enjoys her property and the products of her labor. Giving up her own surname and coming under his economic support and protective cover, the wife is enveloped in a cloak of legal invisibility. Real marital regimes diverged significantly from this formal English model on both sides of the Atlantic before as well as after the American Revolution. Thanks to exceptions carved out in equity, some wives managed to own separate estates, and others enlarged the notion of agency beyond anything Blackstone could have imagined. Changes, however, did not always benefit the wife. Although dower in some jurisdictions expanded to include personal property, the separate examination, a potential source of protection, was increasingly ignored. The deepest gulf between the Blackstonian paradigm and its post- Revolutionary incarnation pivoted on the narrow purpose Blackstone imputed to marriage, an institution viewed from the late eighteenth century onward as a good deal more than a conduit for the transmission of wealth. As James Kent, the so-called American Blackstone, put it in his own Commentaries in the 1820s, “We may justly place to the credit of the Cambridge Histories Online © Cambridge University Press, 2008 252 Norma Basch institution of marriage a great share of the blessings which flow from the refinement of manners, the education of children, the sense of justice, and the cultivation of the liberal arts.”1 Marriage, as Kent suggested, was a capacious institution, a source of both individual socialization and national improvement, and as it came to rest on a foundation of romantic love, its purpose began to include the emotional satisfaction of the marital partners. By the 1830s, middle-class Americans were celebrating marriage as the realization of an intimate and impassioned bond between two uniquely matched individuals who shared their innermost thoughts and feelings. Coverture, an organizing principle in the post-Revolutionary gender system, was in conflict with the great expectations attached to marriage. A man’s freedom to marry and become head of a household clearly defined his manhood, but a wife’s dependency and subservience did not satisfactorily define her womanhood. The purpose of marriage always had included the procreation of lawful heirs, but thanks to a more intimate and egalitarian vision, it now encompassed the happiness and well-being of the husband and wife as well as the nurture and education of the next generation of citizens. Jurists, essayists, poets, and novelists idealized marriage as a loving and harmonious partnership that embodied core national values and required the participation of wives and mothers no less than that of husbands and fathers. It is precisely because marriage embodied core national values and because the happy and orderly union of man and wife represented the happy and orderly union of the new nation that those forms of social organization regarded as threats to marriage were discouraged as a matter of public policy. This was true for Native American kinship systems, which accepted premarital sex, matrilineal descent, and polygamy and divorce. As white settlers drove Indians out from their ancestral lands in the course of westward expansions, the Bureau of Indian Affairs offered property and citizenship to “heads of households” who were prepared to give up their tribal affiliations and non-Christian marital arrangements. Public officials could at least imagine assimilating Indians who embraced a Christian version of monogamy into the national polity; they did not extend that vision to African Americans. Although slaves often “married,” their unions were devoid of recognition by state authorities because prospective spouses were regarded as without the capacity to consent. A master at any time could sell one partner away from the other and make a mockery of the Christian vow, “’til death do us part.” Indeed, so at odds were slavery and the institution of marriage that a master’s consent to a slave’s legal marriage was deemed an act of manumission, an assumption that would make its way 1 James Kent, Commentaries on American Law, 4 vols., 11th ed. (Boston, 1867), 2:134. Cambridge Histories Online © Cambridge University Press, 2008 Marriage and Domestic Relations 253 into arguments in the Dred Scott case. Moreover, although long-standing interracial unions existed, especially in the antebellum South, they did so informally and in the face of statutory bans on interracial marriages designed to keep the number of such unions small. Changes in the legal and social construction of domestic relations after the Revolution were modest. As love and nurture and the needs of children assumed greater import, a modified conception of coverture that upheld the husband’s responsibilities and respected the wife’s contributions satisfied the needs of an emerging middle class. One radical consequence of severing the bonds of empire, as we will see, was the legitimization of divorce. At the same time, lifelong monogamy, a metaphor for a harmonious political union, was celebrated as the wellspring of public morality and national happiness. Coverture, which exerted enormous legal and discursive power, continued to sustain the gender order while the legal disregard for slave and interracial unions continued to sustain the racial order. II. TYING AND UNTYING THE KNOT What constituted a legitimate union and how and for what reasons could it be dissolved were questions impinging on the private lives of many couples who viewed marriage in more fluid terms than state authorities. These vexing questions made their way into the presidential campaign of 1828 when supporters of the incumbent, John Quincy Adams, accused his opponent, Andrew Jackson, of having lived with his wife, Rachel, in an illicit relationship. The Jacksonians dismissed the accusation as a petty legal misunderstanding that had been unearthed for purely partisan purposes. In their version of the story, Andrew Jackson had married Rachel Donnelson Robards in Natchez in 1791 on the presumption that she had been divorced from Lewis Robards by the Virginia legislature, only to discover that what they both believed was a formal divorce decree was merely an authorization for Robards to sue for a divorce in a civil court. Robards did not pursue this option until 1793 in the newly admitted state of Kentucky, which had previously fallen under the jurisdiction of Virginia. In 1794, after a final decree had been issued and the Jacksons came to understand they were not legally married, they participated in a second marriage ceremony. Now in 1828 their innocent mistake was being exploited by men so desperate to prop up the candidacy of the unpopular president that they were willing to collapse public/private boundaries and ride roughshod over the intimate recesses of the Jacksons’ domestic life. The Adamsites proffered a more sinister version of the so-called Robards affair, which they documented with Robards’s Kentucky divorce decree. According to the decree, the defendant, Rachel Robards, had deserted the Cambridge Histories Online © Cambridge University Press, 2008 254 Norma Basch plaintiff, Lewis Robards, and was living in adultery with Andrew Jackson. Substituting the treachery of seduction for the innocence of a courtship undertaken in good faith, they accused Jackson not only of the legal lapse of living with his lady in a state of adultery but also of the moral lapse of being the paramour in the original divorce action. The stealing of another man’s wife, a crime that violated the sexual rights of the first husband, was an indication of Jackson’s inability to honor the most elemental of contracts. Raising the prospect of a convicted adulteress and her paramour husband living in the White House, the Adamsites equated a vote for Jackson with a vote for sin. As debate in the campaign turned increasingly on the legitimacy of probing a candidate’s intimate life in order to assess his fitness for public office, it also exposed the tensions between the private nature of marriage and the role of state intervention. The irregularity of the Jacksons’ union raised a number of questions. Was their 1791 crime that of marrying and participating in bigamy or that of not marrying and living in sin? To what extent and with what degree of precision could the state define the making and breaking of the marriage bond? How could it enforce its definitions across a legally diverse and geographically expanding national landscape? And given the prevailing pattern of westward migration into sparsely settled and loosely organized territories, just how important was the letter of the law in legitimating a union like theirs? The Jacksonian defense rested on the assumption that in the case of the Jacksons’ union, an overly formalistic insistence on the letter of the law was unjust. Underscoring the frontier setting in which the pathological jealousy and emotional instability of Lewis Robards played out, Jackson supporters defended their candidate on the basis of his adherence to the spirit of the law if not the letter. Here was a man who in marrying a deserted and endangered woman showed he had the courage to do the right thing. In a pamphlet designed to demonstrate community approval for his “marriage,” prominent neighbors and friends attested Rachel’s innocence in ending her first marriage and the general’s chivalry in saving her from Robards. The propriety of the Jacksons’ union, as one Tennessee neighbor put it, was “the language of all the country.” But it was the letter of the law that concerned the supporters of Adams, who argued that if the Jacksons had married in Natchez in 1791, they would have produced proof of that marriage and provided it to the world. The Adamsite preoccupation with legal formalism was essential to their rationale for exposing the affair in the first place, and in their view the fault-based foundation employed by the law in adjudicating breaches of the marriage contract made it the perfect arbiter of the rules for conjugal Cambridge Histories Online © Cambridge University Press, 2008 Marriage and Domestic Relations 255 morality. To permit marriage to end as a matter of individual inclination or even community approval was to threaten the entire social structure. However important the Adamsites’ reservations were, they were not enough to defeat the very popular Andrew Jackson. If the majority of the voters could tolerate the prospect of the convicted adulteress and her paramour husband living in the White House, it is probably because they refused to see the Jacksons in those terms. Legal records suggest that the irregularities in the Jacksons’ matrimonial saga were not so rare. Legislative petitions indicate that numerous men and women tried to put a swift and inexpensive end to their unions by appealing to extra-legal community codes and turning to the legislature with the signed approval of friends and neighbors. Others simply walked away from their unions and began marriage anew. Court records of spouses who divorced themselves and “remarried” and subsequently ran afoul of the law probably constitute the tip of the very large iceberg of self-divorce and pseudo-remarriage. Public debate over informal marriages and extra-legal divorces reflected the nagging contradictions between state intervention and contractual freedom, but even legal formalists who favored the closest possible state regulation of marriage understood that the rules for exiting marriage were far more important than those for entering it. As a result, when the legal system moved toward redefining marriage and defining divorce, the terms on which these parallel trends developed could not have been more different. Whereas American courts came to recognize a so-called common law marriage, a consummated union to which the parties had agreed, they were not about to recognize self-divorce. Common law marriage put the best face on an existing arrangement, legitimated children from the union, and brought the husband under the obligation of support. Self-divorce, or even too-easy divorce, menaced the social order. Common law marriage originated in Fenton v. Reed, an 1809 New York decision validating a woman’s second marriage so as to permit her to collect a Revolutionary war pension, although her first husband had been alive at the time of her remarriage. Elizabeth Reed’s story was a familiar one. She claimed her first husband had deserted her, and hearing rumors of his death, she took a new partner. The decision, attributed to James Kent, held that although the second marriage was invalid until the first husband died, after his death no formal solemnization of the second marriage was required for its authenticity. Bigamy, which is what the second marriage was, may have been one of the least prosecuted crimes on American statute books until the Gilded Age. The innovation called common law marriage, moreover, which freed weddings from state control and even licensing, had little to do with the English common law and did not go unchallenged. Ultimately, Cambridge Histories Online © Cambridge University Press, 2008 256 Norma Basch however, it triumphed, and its triumph exemplified the judiciary’s commitment to an instrumentalist approach to domestic relations in which the law functioned as a tool for socially desirable innovation, rather than as repository of inherited customs and precedents. Employing a distinctly contractarian ideology, courts and legislatures united to endorse a private construction of matrimony in order to ensure that the marriage was valid for those who wanted and needed it to be valid. In an effort to protect marriage as a public institution, the law endorsed a private and voluntary version of its legitimization. Divorce was a different matter entirely. Resting as it did on the concept of a serious breach in the marriage contract, it warranted a far more determined use of state authority. Jurists could not advocate divorce by mutual consent much less by unilateral decision, because the underlying justification for rescinding an innocent spouse’s marriage promise hinged on the assumption that the reciprocal promise had been broken by the guilty spouse. Fault played a pivotal role in the legal construction of divorce. Even the omnibus clauses in early divorce statutes, catchall phrases providing broad judicial discretion in decreeing divorces, assumed a fault that was too unique or elusive to be defined by statute, but that could be readily apprehended by the judiciary. The statutory implementation of fault divorce (there was no other kind until well into the twentieth century) in the wake of the American Revolution had been swift and widespread. Colonies whose divorces had been overruled by the Privy Council in the political turmoil of the 1770s provided for divorce in their new state statutes. Other states followed suit, and by 1795 a disaffected spouse could end a marriage in a local circuit court in the Northwest Territory. Grounds varied widely, and some states limited decrees to the jurisdiction of the legislature. Nonetheless, by 1799 twelve states in addition to the Northwest Territory had recognized the right of divorce. In instituting divorce in spare and simple statutes, it seems as if eighteenth-century legislators embraced a solution without fully understanding the problem. Not only did they neglect to address some thorny substantive and procedural issues, but they could not anticipate the number of spouses who would come to rely on the divorce process. Fault, the legal bedrock of divorce law, was difficult to prove and often contradictory to litigants’ best interests. For those who wanted the terms of their marital dissolutions to be as easy as possible, mutual consent was appealing because it was swift and inexpensive and comported nicely with the pursuit of happiness. It is not surprising that nineteenth-century commentators, who were more experienced with the divorce process than their late eighteenth-century counterparts, read a great deal more into divergent legal Cambridge Histories Online © Cambridge University Press, 2008 Marriage and Domestic Relations 257 grounds. The nineteenth-century advocates of a liberal divorce code argued that narrow grounds strictly construed encouraged both lying in petitions and extra-legal solutions. Their opponents countered that broad grounds liberally construed subverted the biblical one-flesh doctrine and marriage itself. In retrospect it is evident that the decision to accept divorce in the first place regardless of its legal particularities constituted a paradigmatic revolution in marriage. The old common law fiction that the husband and wife were one and the husband was the one could no longer exert the same authority once a wife could repudiate her husband in a court of law. Perhaps because it was assumed that divorce would be rare, its initial acceptance proved less controversial than the working out of its particularities. In any case, on the threshold of the nineteenth century the notion that divorces could be decreed for egregious violations of the marriage contract had acquired statutory legitimacy, and it had done so with remarkably little opposition. Divorce subsequently became the lightning rod for a wide-ranging debate about marriage and morals that reverberated through the nineteenth century and beyond. Jurisdictional diversity was a big part of the problem. As litigants shopped for more hospitable jurisdictions, interstate conflicts became inevitable. On the one hand, the stubborn localism of domestic relations law in the face of jurisdictional contests reflected a deep distrust of centralized authority over the family. On the other hand, the dizzying array of grounds and procedures embodied a disturbing range of moral choices. By mid-century, many states, especially those in the West and the area now called the Midwest, recognized adultery, desertion, and cruelty as a grounds, with cruelty and its shifting definitions remaining controversial. Also most states at this juncture, including new states entering the Union, provided for divorce in civil courts. Yet striking exceptions persisted. New York, for example, recognized only adultery as a ground, Maryland limited divorce to the jurisdiction of the legislature, and South Carolina refused to recognize divorce at all. Legislative decrees, which ebbed under the weight of mounting criticism and state constitutional prohibitions, did not disappear entirely from states providing for divorce in the courts, and residence requirements and their enforcement varied from state to state. Legal disparities exposed American divorce as an incoherent amalgam of precepts and precedents based on the frequently conflicting foundations of the Judeo-Christian tradition and liberal contract theory. In a staunchly Protestant nation, albeit of competing sects, divorce represented the disturbing amplification and diversification of an action derived from the English ecclesiastical courts. At issue was which of the many divorce statutes reflected Protestant morality? The rules for ending marriage could Cambridge Histories Online © Cambridge University Press, 2008 258 Norma Basch run anywhere from South Carolina’s decision to make no rules to Iowa’s decision via an omnibus clause to abide by whatever rules the judiciary deemed appropriate. By the time Joel Prentice Bishop’s 1852 treatise on marriage and divorce appeared, the breadth of that spectrum was problematic. As Bishop put it, at one extreme there was the view that marriage was indissoluble for any cause; it was favored in modern times as “a religious refinement unknown to the primitive church.” At the other extreme, there was the view that marriage was a temporary partnership to be dissolved at the will of the two partners; it was held not only “by savage people, but some of the polished and refined.”2 Migratory divorce, an action in which a spouse traveled out of state to secure a decree, demonstrated both the ease with which litigants could manipulate the divorce process and the readiness of the judiciary to uphold the sovereignty of local law. As a result, the divorce standards of a strict jurisdiction like New York were endangered by the laxity of a liberal jurisdiction like Vermont. The practice of migratory divorce, which emerged early in the century between neighboring states, only intensified as transportation improved. By the 1850s, Indiana, with its loose residence requirements and broad grounds, became a target for the critics of migratory divorce. Once railroad lines were united in a depot in Indianapolis, the clerk of the Marion County Court claimed he received at least one letter a day inquiring if a disappearing spouse had applied there for a decree. These roving spouses, husbands more often than not, became emblems for the hypocrisy of the divorce process and the immorality of its rules. Migratory divorce, however, was nowhere near as important a check on each state’s regulation of matrimony as the indifference or resistance of resident husbands and wives. State efforts to control marriage and divorce were not always successful in the face of a couple’s determination to act as if they were free to govern their own marital fate. Some spouses agreed to end their marriages in ways that exhibited little reverence for the principle of fault; others participated in contractual separation agreements despite the antipathy of the judiciary; and still countless others walked away and started married life anew without any reference to or interference from the state. These widespread extra-legal practices confounded the tidy categories in the law of marriage and divorce. Yet legal constructions of marriage and divorce grew ever more important not only because they could help resolve property and custody conflicts and delineate the married from the unmarried but also because by mid-century they were emerging as compass points for the moral course of the nation. 2 Joel Prentice Bishop, Commentaries on the Law of Marriage and Divorce and Evidence In Matrimonial Suits (Boston, 1852), chap. 15, sec. 268. Cambridge Histories Online © Cambridge University Press, 2008 Marriage and Domestic Relations 259 III. THE MARRIED WOMEN’S PROPERTY ACTS When Thomas Herttell introduced a married women’s property bill in the New York legislature in 1837, he supported it with an impassioned speech. In a year of financial panic marked by numerous insolvencies, one strand of his argument revolved around the instability of the antebellum economy. Long an advocate of debtor relief, Herttell addressed the trend toward boom-and-bust economic cycles and the problem posed by an improvident husband who wasted his wife’s patrimony on high-risk speculation. Thanks to the husband’s total control of marital assets, a wife’s property, he averred, could be lost at the gaming table or spent on alcohol while she was immobilized by her contractual incapacity. The second strand of his argument, an assault on the anachronisms and fictions of the common law in general and on Anglo-American marital regimes in particular, was largely legal in its thrust. He warned that the married woman’s trust, the equitable device created to bypass some of the restrictions of coverture and to protect the wife’s property from the husband’s creditors, was riddled with gaps and ambiguities. In an effort to garner support for his bill, he changed its title from an act to protect the rights and property of married women to an act to amend the uses, trusts, and powers provisions in the New York Revised Statutes. Although debtor relief and trust reform undoubtedly met with some legislative approval, the third strand of his argument, a boldly rightsconscious diatribe against the wife’s dependent status at common law, put him in radical territory. “Married women equally with unmarried males and females,” he proclaimed in an appeal to the familiar triad of Anglo- American rights, “possess the right of life, liberty, and PROPERTY and are equally entitled to be protected in all three.”3 When Herttell asserted the “inalienable right” of married women to hold and control their property and insisted that any deprivation of that right was both a violation of the Bill of Rights and a symptom of the unjust exclusion of women from the political process, he was upending the gender rules of classical liberal theory. Liberal theorists from John Locke to Adam Smith never regarded wives as free as their husbands. On the contrary, they at once assumed and affirmed the wife’s subordination and counted marriage together with the benefits of the wife’s services among the rights of free men. Abolitionism, however, with its appeals to the self-ownership of free men generated notions about the self-ownership of married women that were antithetical to the principle of 3 Thomas Herttell, Argument in the House of Assembly of the State of New York the Session of 1837 in Support of the Bill to Restore to MarriedWoman “The Right of Property,” as Guaranteed by the Constitution of this State (New York, 1839), 22–23. Cambridge Histories Online © Cambridge University Press, 2008 260 Norma Basch coverture. It was precisely this synergy between critiques of bondage and critiques of marriage that made its way into Herttell’s remarks. Because the wife at common law was constrained to function as a servant or slave to her marital lord and master, he observed, she was herself a species of property. Only her husband’s inability to sell her outright saved her from the status of unqualified slavery. That Herttell made his remarks in a state that would launch the women’s rights movement in 1848, the same year it passed a married women’s property statute, illustrates how the nascent drive for women’s rights converged with the reform of marital property. His speech, printed in a pamphlet financed by a bequest from his wife’s will, became one in a series of ten popular pamphlets distributed by the women’s movement in the years before the CivilWar. But married women’s property reform also represented narrowly economic motives as exemplified in early Southern statutes. The Mississippi statute of 1839, which preceded the first New York statute by nine years, insulated the slaves a wife owned at marriage or acquired by gift or inheritance from the reach of her husband’s creditors. Mississippi’s failure to give the wife independent control over her human property meant that the family remained a unified community of interests ruled by a male patriarch. The desire to maintain the family as a male-headed community of interests was not limited to the South or to common law jurisdictions. In civil law jurisdictions like Louisiana, Texas, and California, which recognized marital assets as a community of property owned by both spouses, the control and management of the community typically went to the husband. The notion that the interests of husbands and wives were not the same or even worse antagonistic alarmed legislators across the nation, who tended to equate investing wives with legal and economic independence with introducing discord into the marital union. Wives who were competitive rather than cooperative were depicted as amazons in the marketplace who subverted the sacred bond of matrimony. In the first phase of reform, then, most states failed to give women explicit control over their property. The effect of these early statutes, which were focused on the property a woman acquired by gift or inheritance, was to transform the married woman’s separate equitable estate into a separate legal estate. As a result, the statutes democratized an option once reserved for the wealthy and legally sophisticated by rendering it accessible, but they did not significantly alter coverture. The second phase of reform encompassed a married woman’s earnings and recognized the wife as a separate legal actor. The New York statute of 1860 extended the concept of a separate estate to include property from a wife’s “trade, business, labor or services” and empowered her to “bargain, sell, assign, and transfer” it. The Iowa State of 1873 permitted a wife to receive wages for her “personal labor” and to maintain a legal action for it in Cambridge Histories Online © Cambridge University Press, 2008 Marriage and Domestic Relations 261 her own name. Between 1869 and 1887 thirty-three states and the District of Columbia passed similar statutes. In moving beyond inherited property to include a wife’s individual earnings and in empowering the wife to sue and be sued with regard to her separate property, the second phase of reform clearly undermined the common law fiction of marital unity. Here again judicial hegemony over the law of husband and wife was evident, but in contrast to the earlier instrumentalism displayed in the recognition of common law marriage, the adjudication of the earning acts embodied a turn to formalism in which judges weakened or nullified a married woman’s right to earnings by invoking old common law principles as self-contained, inflexible, and even scientific. At issue was the definition of the wife’s separate earnings, which typically came from labor performed at home, such as taking in boarders, producing cash crops, raising chickens, and selling eggs. The judiciary persistently classified such activities as coming under the wife’s traditional obligation of service. In a suit for tort damages brought two years after the Iowa earnings act, the court upheld a husband’s right to all of his wife’s household labor. Because the customary ways in which women earned money tended to be excluded from the reach of the earnings acts, a wife’s labor at home on behalf of third parties fell within her obligation to serve as her husband’s “helpmeet.” When a husband takes boarders into his house or converts his house into a hospital for the sick, ruled the New York Court of Appeals in 1876, the wife’s services and earnings belong to the husband. Even a wife’s labor in a factory could be construed as belonging to the husband in the absence of evidence the work was performed on her separate account. Coverture, then, was challenged but far from eradicated by the second wave of legislation; in fact its legal authority remained formidable. As one member of the judiciary put it when he excluded rent from a wife’s real estate from the category of a separate estate, “The disabilities of a married woman are general and exist in common law. The capabilities are created by statute, and are few in number, and exceptional.”4 Because courts tended to treat the wife’s legal estate, like her equitable one, as exceptional, they continued to place the wife under the husband’s traditional power and protection. What were third parties – creditors, debtors, retailers, and employers – to assume? That in the absence of indications a married woman’s property fit into this exceptional category, she came under the disabilities of coverture. There was also a quid pro quo behind the husband’s continued authority. He enjoyed his marital rights by virtue of his marital duties, and the duty to support remained his, regardless of the amount of his wife’s earnings or assets. Because he was the legally designated 4 Nash v. Mitchell, 71 N.Y. 199 (1877), 203–4. Cambridge Histories Online © Cambridge University Press, 2008 262 Norma Basch breadwinner and therefore responsible for his wife’s “necessaries,” he had a right to her services, earnings, and “consortium” (affection, company, and sexual favors). The breadwinner ethos grew ever more important in a market economy in which home and work were separated, the wife’s household labor was devaluated, and her economic dependence was palpable. The market yardstick of value, which afforded little room for recognizing the value of the wife’s household services, was reinforced and updated in tort law.Wrongful death statutes, passed in the second half of the century, reproduced the model of husbands working outside the home for wages and wives remaining at home and economically dependent. Some states barred recovery of damages by a husband for his wife’s wrongful death, thereby inverting the customary gender asymmetry of the common law. In states that permitted recovery by husbands, damages were limited since establishing the value of domestic services was more difficult than establishing the value of lost wages. Wifely dependency was the legal norm in torts as well as in property, and the prevailing ground for recovery in this nineteenth-century innovation in tort law was the wife’s loss of her husband’s support and protection. It is noteworthy that this change in tort law explicitly addressed and implicitly prescribed a wife’s dependence at precisely the time wives were acquiring new forms of legal independence. Coverture was transfigured in the second half of the nineteenth century, but the authority of the “superior” and the dependency of the “inferior” so prominent in the contours of Blackstone’s law of persons remained a leitmotif in American marriage law. In a sanitized and sentimentalized Victorian incarnation, coverture continued to define what a man should be as a husband and what a woman should be as a wife. Yet one enduring legacy of the drive for married women’s property rights was the conflicting visions of marriage it unleashed. Although the drive began as an effort to clarify debtor-creditor transactions, protect the family from insolvency, and recognize the waged labor of wives, it evolved into a contest that spiraled far beyond the provisions for marital property. And what made the contest so acrimonious was that every participant identified the legal construction of marriage as the foundation of the gender system. Conservatives anxious to hang on to the traditional configuration of marriage underscored the protection and “elevation” it afforded women and the stability and prosperity it brought to the nation. Where conservatives saw protection, women’s rights advocates saw subjection, which they regarded as a symptom of male depravity and the source of women’s political exclusion. Giving husbands property rights in both their wives’ assets and bodies, they reasoned, made marriage the key institution through which men established their authority over women. For utopian socialists, the problem with traditional marriage also pivoted on the evil of men owning women, but Cambridge Histories Online © Cambridge University Press, 2008 Marriage and Domestic Relations 263 they viewed it not so much as a symptom of male depravity as a consequence of the whole unjust system of private property. Liberal women’s rights advocates like Elizabeth Cady Stanton, however, believed that property rights, which were part of the problem, could be part of the solution if they invested wives with the same self-ownership and independence society had granted to free, white men. No matter that self-ownership was in conflict with the protections afforded by coverture: it was difficult for the law to compel a delinquent husband to provide them. A woman with a good husband might thrive under his protection, but thanks to the codes of an androcentric legal system, a woman with a bad husband could find herself destitute. A wife’s well-being, in short, should not depend on the benevolence of her husband. Although this was an unsettling argument in the heyday of female domesticity and the breadwinner ethos, it invoked the rights associated with the modern liberal state. When women demanded property rights in the name of those private islands of self-ownership that were the hallmark of liberal individualism, they were not only rejecting the doctrine of marital unity, they were exploring and exposing the way provisions in the marriage contract excluded them from participation in the social contract. The radical challenge provided by using the argot of classical liberal theory to subvert the legitimacy of its own gender rules was not limited to women’s rights pamphlets; it radiated into the mainstream of public discourse where it coalesced with the ideology of abolitionism and began to erode the moral authority of coverture. IV. THE BEST INTERESTS OF THE CHILD The contractualism at the root of the marriage bond was more muted in the bond between parent and child. The ideal of self-ownership so evident in the women’s rights movement could hardly be applied to children, who were in fact unavoidably dependent. Yet changing views of children contributed to the legal transformation of the family from a male-headed community of interests to a cluster of competing individuals. Children achieved a measure of legal individuality in a series of shifts that at once reflected and shaped the transition in their status from mere appendages of a father’s will to discrete beings with special needs. Mothers, if they were morally fit and economically secure, were increasingly designated as the ones whom nature had endowed to meet those special needs. The widely publicized 1840 d’Hauteville suit – a bitter contest over the custody of a two-year-old son – is a case in point. Characterizing the mother, the judge declared, “her maternal affection is intensely strong, her moral reputation is wholly unblemished; and . . . the circumstances of this case Cambridge Histories Online © Cambridge University Press, 2008 264 Norma Basch render her custody the only one consistent with the present welfare of her son.”5 Denial of Gonzalve d’Hauteville’s challenge to Ellen Sears d’Hauteville’s custody of their only child was by no means the only resolution available to the court. Given the wife’s refusal to return to her husband’s ancestral home in Switzerland after giving birth to their son in Boston, the ruling was incompatible with a father’s presumptive right to custody, as well as the fault-based premise for custody in divorces and separations. Despite the ruling, the rights and entitlements of fathers were theoretically in force in 1840. A mother’s voluntary separation from her husband without cause typically blocked her claim to custody, and fathers in most jurisdictions retained the right to appoint a testamentary guardian other than the mother. It is precisely because American family law in 1840 supported the principle of paternal authority thatWilliam B. Reed, Gonzalve d’Hauteville’s attorney, built his case around the sovereignty of the husband as it was spelled out ,in Blackstone’s Commentaries. Still, as Reed must have sensed when he reviewed the fluid, evolving nature of American family law, depending on the legal fiction that the husband and wife were one and the husband was the one was no longer enough in a culture that valorized relations based on affection and elevated the bonds of family to new emotional heights. Appealing to the tender ties of parenthood, Reed imbued Gonzalve d’Hauteville with a love no less vibrant or unselfish than that of the mother. No one can say, he argued, “with whose affections a child is most closely entwined, and whether the manly fibres of a father’s heart endure more or less agony in his bereavement than do the tender chords which bind an infant to a mother’s breast.”6 Ironically, in using the image of an infant at its mother’s breast in an effort to equate fathers with mothers, Reed was employing one of the most evocative tropes of the day and one that esteemed a mother’s “natural” capacity for nurture at the expense of a father’s traditional authority. The intensifying emphasis on a child’s innocence and vulnerability and the Victorian conception of childhood as the critical stage in an individual’s moral development contributed to the creation of new institutions, the most important of which was the common school. Others included orphan asylums, children’s aid societies, and various homes of refuge all devoted to the cause of child welfare. The heightened focus on child nurture, which placed mothers at the very center of familial relations, found its way into the legal system. Although the father’s common law rights were still presumed, as the d’Hauteville case with its judicial homage to motherhood indicates, that presumption was nowhere as strong at mid-century as it had once been. 5 Samuel Miller, Jr., Report of the d’Hauteville Case (Philadelphia, 1840), 293. 6 Miller, Report, 195. Cambridge Histories Online © Cambridge University Press, 2008 Marriage and Domestic Relations 265 Torn between applying the common law rights of the father and “the best-interests-of-the-child” doctrine, the judiciary moved toward favoring the mother in custody battles. On the assumption that children who were young or sickly were in particular need of a mother’s care, maternal custody also rested on a tenet that came to be called “the tender years doctrine.” Judges tied custody to gender as well as to age so that boys beyond a certain age might go to their fathers while girls of all ages tended to be placed with their mothers. Believing in fundamental differences between mothers and fathers, judges essentialized women as nurturers and, in so doing, were predisposed to place children in their care. Legislatures also participated in the trend toward maternalism. Some states enacted statutes authorizing women to apply for a writ of habeas corpus to adjudicate the placement of a child, a move that turned custody from a common law right into a judicial decision. Notions of spousal equality associated with a loving and companionate model of marriage informed the statutory language used in the reform of custody. The Massachusetts legislature pronounced the rights of parents to determine the care and custody of their children as “equal.” In 1860, largely as a result of sustained campaigns by women’s rights advocates, the New York legislature declared a married woman the joint guardian of her children, with the same powers, rights, and duties regarding them as her husband. Spousal equality and gender-specific roles were not mutually exclusive. In the drive for maternal custody, women’s rights advocates mixed demands for equality with essentialist assertions of difference in almost the same breath. But as a decision rendered in the wake of the New York statute equalizing custody illustrates, neither arguments for equality or difference were effective when judges were determined to resist what they regarded as the excessive democratization of the family. When Clark Brook applied for a writ of habeas corpus for the return of his son from his separated wife, it was granted because she had left him without his consent and he had not mistreated her. In an appellate court ruling that relied on assumptions in the law of persons and avoided the language of Victorian maternalism, JusticeWilliam Allen insisted that the underlying quid pro quo in marriage had not been abrogated by the statute. Because a husband was bound to support his children, he enjoyed a right to their labor. If the new law had truly authorized the wife’s custody, it also would have imposed on her the responsibility of support. Allen read the law as giving the wife a custody right she might exercise with her husband while she was living with him, but not away from him or exclusive of him. The statute, which Allen claimed did not destroy the husband’s traditional marital rights at the option of the wife, was repealed in 1862. That is not to say the courts reverted to paternal rights. On the contrary, the Cambridge Histories Online © Cambridge University Press, 2008 266 Norma Basch trend in decisions moved inexorably toward maternal custody. Maternal custody, however, was achieved not so much as a matter of maternal rights but as a matter of judicial discretion, which paved the way for enlarging state authority over the family. In the nineteenth century, courts replaced the father’s absolute custody rights with their own discretionary evaluation of the child’s welfare, thereby instituting a modern relationship between the family and the state. The common law was routinely cited and then frequently overruled in the name of “tender years” or “the best interests of the child.” The ultimate authority over the family, however, was now the judiciary. One exception to the purely discretionary nature of maternal rights was the changing law of bastardy, which gave custodial rights to the mother and improved the degraded common law status of the illegitimate child. At common law, as Blackstone noted, a bastard was fatherless as far as inheritance was concerned. He could inherit nothing since he was viewed as the son of nobody and was therefore called filius nullius or filius populi. To regard him otherwise, as the civil law did by permitting a child to be legitimized at any time, was to frustrate the main inducement for marriage: to have legitimate children who would serve as the conduits for the perpetuation of family wealth and identity. Those without property needed to marry and have legitimate children in order to fix financial responsibility and ensure that their offspring would not become public burdens. American law departed dramatically from the common law provisions for bastardy. Over the course of the nineteenth century courts and legislatures alike designated the illegitimate child as a member of the mother’s family and gave mothers the same custodial rights the common law had conferred on married fathers. Criminal punishment for producing an out-of-wedlock child disappeared, and although putative fathers were expected to support the child, they lost any claim to their custody. As a New Hampshire court ruled in 1836, the father could not elect to take custody of his child instead of paying for the child’s support, an option that had been available in early America. Mothers of illegitimate children enjoyed a special legal status so long as they remained unmarried to the father and could provide support for their children. As a consequence of the legally recognized bond between mother and child, by 1886 thirty-nine states and territories provided the out-of-wedlock child with the right to share in a mother’s estate. Yet the nineteenth-century American rejection of the common law stigma imputed to bastardy had its limits; in many jurisdictions an illegitimate child could not share in the estate of the mother’s kin or defeat the claims of legitimate children. The judiciary, meanwhile, tried to legitimize as many children as possible by recognizing common law marriages and even marriages that were under an impediment. By 1900 more than forty states declared that Cambridge Histories Online © Cambridge University Press, 2008 Marriage and Domestic Relations 267 children of voided marriages or marriages consummated after their births were legitimate. The enhanced status of the mother of the illegitimate child and indeed the child could be undone by financial need. The close bond in the newly legalized family unit of mother and child, like the corporate unity in the traditional family, protected the family from state intervention only as long as there was economic support. Humanitarian attitudes toward all children – be they legitimate or illegitimate – could not prevent overseers of the poor from removing a child from the family and placing it in or apprenticing it to another family. This could occur at ages as young as four or five. Two contradictory impulses were at work in the legal construction of bastardy: one was the humanitarian and egalitarian desire embedded in Enlightenment thinking and spelled out in accord with Thomas Jefferson’s plan in a 1785 Virginia inheritance statute to make all children equal in status; the other was the age-old concern for the taxpayer’s pocketbook. It is not surprising that some elements of bastardy law reflected the anxiety of local taxpayers or that bastardy hearings revolved around the putative father’s obligation of support. Putative fathers were often subject to arrest and property restraints until they agreed to provide support. And although some reformers argued for eradicating all distinctions between legitimate and illegitimate children, the fear of promiscuity and the threat it posed to the institution of marriage blunted the full realization of that goal. By the early twentieth century needy illegitimate children came increasingly under the purview of welfare agencies and social workers at the expense of the intimate bond between mother and child created in the Early Republic. The other critical shift regarding children and their legitimacy was the mid-century formalization of adoption. Adoption law, in contrast to bastardy law, created a family devoid of blood ties. Adoption had taken place prior to statutory recognition through informal arrangements and private legislative acts. The Massachusetts adoption statute of 1851, however, which became the model for many other states, provided for the transfer of parental authority to a third party, protected the adoptee’s inheritance, and conferred on adopters the same rights and responsibilities as biological parents. While the aim of that statute was to make the child’s relationship to its adoptive parents the same as that of a biological child, not all states followed that precise pattern. Even in those that did, the judiciary often made distinctions between natural and adopted children. In decisions that echoed the judicial distinctions regarding the inheritance rights of illegitimate children, judges frequently defeated the stated intent of statutes to make adopted and biological children equal. Though legislatures initiated formal adoption, it was the courts that monitored it and shaped it. In circumstances where the adoptive child competed for an Cambridge Histories Online © Cambridge University Press, 2008 268 Norma Basch inheritance with biological offspring, courts tended to favor the biological offspring, making the adopted child’s status “special” rather than equal. Adoption, after all, was unknown at common law and was therefore subject to strict construction. And in the process of permitting artificial parents to take the place of natural ones and of making the judiciary the arbiter of parental fitness, adoption provided yet another pathway for the state to intervene in the family. Of course, most intact and self-supporting families avoided the scrutiny of the state. But in adoption, custody awards, and the law of bastardy, the doctrine of “the best interests of the child” transformed parenthood into a trusteeship that could be abrogated by the state through judicial decision making. V. RECONSTRUCTION AND THE FREEDMAN’S FAMILY Despite the growing authority of the state in specific areas of domestic relations, the paradigmatic legal unity of the family not only coalesced with the celebration of the household as a harmonious sanctuary from the outside world, but it did, in fact, serve as a buffer against government interference. Family unity, however, depended on the hierarchical ordering of its members. It is noteworthy that, before the CivilWar, marriage and slavery were the two institutions that marked the household off from the state and identified its inhabitants as either heads of households or dependents. Given all the evocative analogies between slavery and marriage that dotted antebellum culture along with the shared foundation of the two institutions in the law of persons, it was difficult to consider slavery after the war without considering marriage or to address race without addressing gender. Although slavery was involuntary and marriage was contractual, both were domestic relations, and the parallels that had been invoked by feminists and slaveholders for their competing agendas re-emerged during Reconstruction. As the Reconstruction amendments revolutionized the relation between the states and the federal government, they turned the complex intertwining of race and gender into a permanent feature of American constitutional discourse. From Civil War pensions to the policies of the Freedmen’s Bureau, moreover, the federal government began to demonstrate a growing presence in the institution of marriage. The debate over the Thirteenth Amendment exemplifies the new confluence of gender and race at the constitutional level. When a Democrat in the House protested the amendment’s failure to compensate slaveholders for the loss of their slaves, he reminded his colleagues of the prerogatives they enjoyed as husbands, fathers, and employers. A husband’s right of property in the services of his wife, he insisted, is like a man’s right of property in the services of his slave. In another appeal to patriarchal prerogatives, Senator Cambridge Histories Online © Cambridge University Press, 2008 Marriage and Domestic Relations 269 Lazarus Powell, Democrat of Kentucky, warned that the original wording in the amendment making all “persons” equal before the law would impair the powers held by male heads of households. Republicans also registered their concern with the gender-neutral language in the amendment, which Michigan senator, Jacob Howard, noted with alarm would make the wife as free and equal as her husband. When Charles Sumner, the Senate’s staunchest abolitionist, withdrew his support from the inclusive language in the original draft, it signaled the Congressional commitment to the traditional contours of marriage. Congress wanted only to extend the marriage contract as it presently existed to former slaves, a policy the wartime government had already put into place for the first slaves to reach the Union lines. Able at last to make labor contracts, freedmen and freedwomen were also able to make marriage contracts, a long-denied civil right that constituted a sweeping change in their status. In refusing to recognize the autonomy of the black family, slavery had rendered it open to disruption, separation, and the sexual whims of the master. As Harriet Beecher Stowe demonstrated to the world in Uncle Tom’s Cabin, the separation of mother and child was one of slavery’s most horrific transgressions. But it was fathers who were pivotal in the legal transformation embodied in the right to marry since implicit always in the male slave’s degradation was his inability to control and protect the members of his own family. Thus it was to freedmen as heads of households that the Freedmen’s Bureau directed its reforms, including its original plan to transform ex-slaves into property holders by giving them land. In the summer of 1865, the Freedmen’s Bureau issued “Marriage Rules,” which authorized procedures for both dissolving and legalizing the unions of former slaves and declared an end to extra-legal unions. In the following year Southern states passed statutes and in some cases constitutional amendments that either declared the unions of former slaves legal or required their formal registration; extra-legal cohabitation was typically declared a misdemeanor punishable with fines. Legal marriage, however, was a radical departure from the norms of the antebellum plantation. Given the enforced instability of slave unions, the marital regimes devised by slaves often consisted of informal marriage, self-divorce, and serial monogamy. Because marriage was a civil right and a potential source of familial protection, many couples rushed to formalize their unions immediately after the war; in 1866 in North Carolina alone, where registration was mandated, more than 9,000 couples in seventeen counties attested their readiness to tie the knot officially. But defining which union was the legal one could be problematic, and disputes surfaced in the courts in the form of inheritance, bigamy, and divorce suits. Some freedpersons opted to resume prior unions rather than formalize their current union, whereas others simply failed to comply with either the rules Cambridge Histories Online © Cambridge University Press, 2008 270 Norma Basch or values of the new marital regimes. Those lower-class whites who like some Northern counterparts believed the partners in a union and not the state were in charge of their marital arrangements failed to comply as well. Providing former slaves with the right to marry carried different meanings for different groups. For Reconstruction Republicans, as the agenda pursued by the agents of the Freedmen’s Bureau indicates, it represented the formation of male-headed nuclear families and was inextricably linked to the party’s paramount goal of turning former slaves into wage-workers. Accordingly the labor contracts drafted by the Bureau supported coverture by awarding a wife’s wages to her husband even as it recognized the freedman’s wife as a wage-worker. For freedmen, the right to marry was a mark of manhood and a symbol of citizenship, and their authority over the family unit carried the promise of insulating its members from outside interference. The new integrity that formal marriage conferred on the family became a legal tool for keeping children out of involuntary apprenticeships. Asserting their rights as heads of households, freedmen regularly went to court to block the implementation of apprenticeship provisions in Black Codes. For former masters, who had once counted slaves as members of their households, marriage was a way to assign economic responsibilities since the state had assumed the authority they had once held as slaveholders but not their obligations. Placing the unions of former slaves under the aegis of the state also afforded ex-Confederates a pathway for consolidating white power by instituting bans on interracial marriages. As for freedwomen, who were urged to submit to the bonds of matrimony as they were liberated from the bonds of slavery, the right to marry was a mixed blessing. Those who gratefully accepted the privileges of white womanhood gave up full-time work for full-time wifehood and motherhood. For most, labor outside the household was an economic requirement and not a choice. Wifely subservience, however, was a choice, and marital contestations in county court records reveal that freedmen sometimes anticipated a deference their wives were not prepared to give. By virtue of their experiences as slaves, freedwomen were neither as acculturated to nor as accepting of the uneven distribution of marital power as middle- and upper-class white women. Yet to pursue a suit for domestic violence in legal regimes that still rested on the assumption that the husband represented the wife, they were compelled to cast themselves as helpless victims whose spouses had overstepped the farthest limits of patriarchal power. The most pernicious constraints emanating from state control over the unions of freedpersons consisted in using marriage laws to uphold “racial purity,” a policy that impinged on both sexes and prevailed in theory on both sides of the color line. Its real effect was to reinscribe racial hierarchies. Statutory prohibitions of “miscegenation,” a word coined in 1864 that came Cambridge Histories Online © Cambridge University Press, 2008 Marriage and Domestic Relations 271 to stand for any interracial sexual union, flew in the face of a contractual conception of matrimony and its attendant protections. Interracial couples battled anti-miscegenation laws by appealing to the Civil Rights Act of 1866 and the equal protection clause of the Fourteenth Amendment. Yet apart from two short-lived exceptions, they failed in all the fifteen suits to reach the highest state appellate courts. Marriage, intoned the Supreme Court of North Carolina in 1869, although initiated by a contract, was a “relation” and an “institution” whose ground rules had never been left to the discretion of the spouses. Inasmuch as whites and blacks alike faced the very same prohibitions, the court continued, such laws did not favor one race over the other. The court also defined marriage as a “social relation,” thereby placing it beyond the ken of the rights enumerated in the Civil Rights Act and recognizing that full social equality between the races had never been a part of the Republican vision of Reconstruction. Drawing on a national judicial trend to treat marriage as something of a hybrid, Southern courts quelled challenges to anti-miscegenation laws largely by defining marriage as a status. This was precisely the tack taken by the Texas Court of Appeals in 1877 when Charles Frasher, a white man wedded to a black woman, appealed his conviction on the grounds that such statutes were abrogated by the Fourteenth and Fifteenth Amendments and the 1866 Civil Rights Act. In defining marriage as a status, the court determined that the regulation of marriage was properly left to the discretion of the state of Texas. “[I]t therefore follows as the night follows day,” it declared, “that this state may enforce such laws as she may deem best in regard to the intermarriage of whites and Negroes in Texas, provided the punishment for its violation is not cruel or unusual.”7 Similar bans, which were supported by an increasingly pseudo-scientific body of racist literature and were directed at intermarriage with Asians, appeared in Western jurisdictions and proliferated. By 1916, twenty-eight states and territories prohibited interracial marriage. Marriage law also contributed to the debasement of African Americans through its systematic adherence to gender hierarchy. Although construing the family as a male-headed community of interests offered some protection to its members, female dependency provided a handy reference point for the disfranchisement of black men. Using the words “wives” and “women” interchangeably, senators reluctant to enfranchise African American men in the early days of Reconstruction invoked the constitutional status of white women as the perfect example for distinguishing the rights of citizenship from the political privilege of voting. Southern Redeemers, working state by state, did the work of disfranchising African American men and restoring 7 Frasher v. State, 3 Tex. App. 263, 276–77 (1877). Cambridge Histories Online © Cambridge University Press, 2008 272 Norma Basch white supremacy, but the move had been prefigured by senators underscoring the circumscribed political status of women as wives. Despite the triumph of states’ rights in the regulation of domestic relations, one lasting effect of Reconstruction was the federal government’s intervention in marriage. There were already precedents. In 1855 Congress declared that a free, white woman of any nationality became a citizen automatically on marrying a male American citizen, and the child of any male American citizen was a citizen regardless of its birthplace. The Morrill Act of 1862, aimed at Utah Mormons, established the power of the federal government to regulate marriage in the territories. Reconstruction significantly amplified federal intervention in marriage. It was the federal government that took the lead in both offering marriage to freedpersons and distinguishing legal marriage from extra-legal unions, redefined as adultery and fornication. It was the federal government that reinforced the paradigm of wives as dependents in its pensions for Civil War widows and instituted governmental surveillance of the pensioners’ marital qualifications. And it was the federal government’s aggressive promotion of a narrowly traditional ideal of monogamy that set the stage for a full-scale assault on Mormon polygamy. VI. POLICING MONOGAMY AND REPRODUCTION IN THE GILDED AGE In the aftermath of the Civil War, a renewed commitment to the irrevocability of the federal union was bound up in public discourse with a renewed commitment to lifelong monogamy. As Abraham Lincoln had warned in a much-quoted domestic trope, “a house divided against itself cannot stand.” Divorce, then, with its distinctly contractual foundations, its broadly divergent grounds, and its implicit acceptance of serial monogamy came under serious attack. Addressing a national divorce rate that was very low by current standards but clearly on the rise after the war, and decrying the seductions of secularism and modernity, conservative Protestants appended entire worldviews to “the divorce question.” The comments of Henry Loomis, a Connecticut clergyman, exemplify the way moral critics deployed lifelong monogamy as the critical marker for a Christian nation while equating divorce with national decay. Whereas true Christians viewed marriage as a divine institution and the foundation of civil society, Loomis observed, the “infidel or socialist” view of marriage was based on the idea that marriage should continue only at the pleasure of the partners. Given the historic ties between marriage and government, it was understandable, he conceded, that the nation’s separation from England had nourished the acceptance of divorce. But now responsible Christians of the Cambridge Histories Online © Cambridge University Press, 2008 Marriage and Domestic Relations 273 nineteenth century were reversing dangerous Enlightenment experiments, and the “infidel theory of the state” so popular at the time of revolution was giving way to a respect for divine authority. The infidels, the freethinkers, and the free lovers, whom Loomis placed in direct opposition to anti-divorce Christians, belonged to a meandering stream of American radicalism that ran all the way from the Enlightenment anti-clericalism of a Tom Paine through the utopian socialism of a Robert Owen to the homegrown anarchism of a Steven Pearl Andrews. Yet the demarcation he created was too tidy by far since the infidel theory he condemned received its most ardent expression in the voices and practices of unorthodox Christians. Spiritualism’s rejection of marital tyranny, the Church of the Latter Day Saints’ devotion to plural marriage, and the Oneida Perfectionists commitment to “complex marriage” all challenged Loomis’s definition of Christian marriage. Loomis was joined in his anti-divorce sentiments by a host of local allies. Critiques by New England clergymen, including Theodore Woolsey, the president of Yale, became part of a larger campaign that evolved from an effort to eradicate Connecticut’s omnibus clause into an organized legal crusade to make divorce less available. The New England Divorce Reform League, with Woolsey serving as president, became the leading edge of a movement for a uniform national divorce code. Its executive secretary, the Congregationalist minister Samuel Dike, took the League to national prominence by mixing clergymen, lawyers, and social scientists on the executive board. Dike then convinced Congress to fund a national survey on marriage and divorce, which was compiled by Secretary of Labor Carroll D.Wright and remains a remarkable statistical guide for the years between 1867 and 1902. Dike’s refusal to remarry a congregant whose divorce failed to meet his own religious scruples led to the loss of his church and became a catalyst for his reform activities. Denominational conventions often addressed the vexing theological dilemma of remarriage and the apparent gulf between secular law and the New Testament. Yet Christian precepts were central to Anglo-American marital regimes as illustrated by the casual verbal substitution of the biblical one-flesh doctrine for the legal fiction of marital unity. References to Scripture dotted discussions of divorce in state legislatures, and jurists and legislators alike assumed that the common law and Christianity (in its Protestant incarnation) were properly united in domestic relations and the union was in no way a violation of the disestablishment clause of the first amendment. Those two assumptions, resting as they did on an exclusively monogamous view of marriage, with some denominational variations regarding its dissolution, help account for the government’s success in pursuing Cambridge Histories Online © Cambridge University Press, 2008 274 Norma Basch polygamy in comparison to the relative failure of the drive to roll back divorce. Moral critics persistently linked both divorce and polygamy to the degradation of women and highlighted the ease and prominence of divorce in Utah. But while some states removed omnibus clauses and tightened residence requirements, most legislators were disinclined to retreat to an adultery-only standard for divorce; the divorce rate continued to rise, and a uniform, national divorce code never came to pass. Polygamy, by contrast, loomed as a much greater deviation from traditional Christianity, and Mormons soon discovered the extent to which conventional Protestantism trumped both their own reading of Christian marriage and their reliance on the protection of the First Amendment. In the Gilded Age, eradicating polygamy became a defining feature of the Republican Party and a political substitute for the party’s vaunted role in saving the Union. Republicans who had labeled polygamy and slavery “the twin relics of barbarism” before the war continued to compare plural wives to bond slaves after the war. Relying on patterns developed in Reconstruction, anti-polygamists demanded federal intervention in Utah. Enforcing the Morrill Act, however, which made bigamy in federal territories a crime punishable by imprisonment, had been foiled by Utah’s failure to register marriages and by the recalcitrance of Mormon juries. After 1870, moreover, when Utah enfranchised the women of the territory, comparing Mormon women with bond slaves required a new kind of logic. When newly enfranchised plural wives endorsed polygamy at a series of mass meetings, critics suggested their complicity in their own enslavement. The defeat of polygamy took place in a series of contests that placed the federal government in an unprecedented position of authority over marriage law. In an effort to enforce the Morrill Act, the Poland Act of 1874 empowered federal courts in the Utah territory to try federal crimes and empanel federal juries. As a result, a test case, Reynolds v. United States, emerged and reached the Supreme Court in 1879. The Mormons, who avowed plural marriage was a religious tenet that ordered their moral and social universe, also based their defense against the Morrill Act on the firmly established legal principle of local sovereignty over domestic relations. These arguments were no match for the anti-polygamy fervor of the era. Chief Justice Morrison Wait writing for the court in Reynolds designated polygamy too abhorrent to be a religious tenet, declared it “subversive of good order,” and denounced it in a racial slur as the preserve of Asiatic and African people. When polygamy persisted in the wake of the Reynolds decision, further federal action followed. Congress passed the Edmunds Act in 1882 disenfranchising polygamists, bigamists, and cohabitants and making it criminal to cohabit with more than one woman. In 1887 the Edmunds-Tucker Act Cambridge Histories Online © Cambridge University Press, 2008 Marriage and Domestic Relations 275 disincorporated the Mormon Church, and in a strikingly indiscriminate provision, it also disenfranchised the women of Utah regardless of their religious affiliation or marital status. When the Mormons finally capitulated by officially abandoning polygamy, they set the stage for Utah’s admission to the Union. And on the long path to capitulation, the government’s aggressive campaign to eradicate this offensive local difference stood as a warning to other groups. Shortly after the decision in Reynolds, a group from Hamilton College gathered in upstate New York to oppose “complex marriage,” an experimental regime that controlled reproduction, raised children communally, and prohibited exclusive pairings between men and women. When the Oneida Perfectionists gave up complex marriage in August of 1879, they noted in their newspaper that they could not remain blind to the lesson in the Mormon conflict. Given the torrent of words and actions directed at deviations from monogamy, it is worth considering the common threat embodied in alternative marital regimes as well as in the serial monogamy unleashed by divorce. Part of the threat consisted in overturning the rules whereby men ordered their sexual access to women. The campaigns against polygamy and divorce typically extolled the Christian/common law model of monogamy for protecting the chastity of women while they obscured how the chastity of women represented male control of female sexuality. Campaigns against birth control revolved around a similar concern with regulating female sexuality and resulted in a growing governmental presence in reproduction. The government’s intervention in reproduction took place in the context of a dramatic demographic shift. Over the course of the nineteenth century white female fertility declined from a high of 7.04 to 3.56 children per family. In the absence of famine or catastrophic disease, we can only conclude that couples were voluntarily limiting the size of their families. One method when others had failed was abortion, which came under attack at midcentury from the newly founded American Medical Association. A decade later many states still had no provision making abortion a crime, and those that did relied on the old “quickening” rule of the common law, which permitted abortion so long as there was no discernible movement of the fetus. By the 1880s and 1890s, in the midst of a crusade for “moral purity,” abortion, including those performed before quickening, became a crime in most states.Women who sought abortions were subject to criminal penalties along with the persons who provided them. Other forms of birth control generated federal intervention. Although separating sexual relations from reproduction was undoubtedly the goal of many men as well as women, it constituted a serious threat to the gender system by affording opportunities to women for risk-free sexual relations outside of marriage. Indeed, few advances held a greater potential for liberating women than reproductive Cambridge Histories Online © Cambridge University Press, 2008 276 Norma Basch freedom, which may account for why the resources for achieving it were defined as “obscene.” Anthony Comstock, a Christian fundamentalist, led the crusade against birth control. The 1873 federal bill bearing his name criminalized the use of the mails to disseminate “obscene, lewd, or lascivious” materials, including items for preventing conception and inducing abortion. Many states followed the federal lead with their own detailed statutes. Remarkably, Congress evinced no reservations about the scope or constitutionality of its assault on obscenity, and federal courts generally followed suit. Seven months after the bill’s enactment, a federal district court in New York City upheld both the authority of Congress and the conviction of a physician for mailing powders with abortifacient and contraceptive properties. Three years later a federal court in Nevada used the law to penalize ambiguous advertising for contraceptive remedies. The Comstock laws, which constrained the free flow of birth control information, were not strictly enforced, and they could not eradicate the impulse toward reproductive freedom that gathered force toward the end of the century. Yet although the quest for effective birth control acquired some respectability by the third decade of the twentieth century, abortion grew increasingly problematic. Abortions were still performed in significant numbers and were never equated with the crime of infanticide, but the women who sought them were no longer the middle-class wives of the mid-nineteenth century but instead single and working-class women. The criminalization of abortion not only deprived women of reproductive privacy and narrowed their options; it represented a significant departure from years of common law jurisprudence. The role of the federal government in enforcing uniform marriage standards was also a departure from the principle of local sovereignty that had reigned in the first half of the century. The most revealing feature in the crusade for moral purity and marital uniformity, however, was its devotion to pronatalism, which was directed at a society bent on limiting family size. Women – white, nonimmigrant, properly married women of Northern European origin – were to serve American society by having more children. Here was maternalism with a vengeance, and with a distinctly nativist cast. In the end, the devotion to maternalism played an equivocal role in reshaping American legal regimes. While Comstockery was placing new curbs on women’s autonomy in the name of motherhood, motherhood was eclipsing fatherhood in custody awards in the courts, and the courts were exercising their authority at the expense of the male head of the household. The legal system now regarded wives primarily as mothers whose wellbeing was dependent on their husbands, and it regarded husbands primarily as wage earners for whom the state might act as substitute in limited Cambridge Histories Online © Cambridge University Press, 2008 Marriage and Domestic Relations 277 and closely scrutinized circumstances. These updated legal constructions, although a far cry from Blackstone’s extended patriarchal household, still retained some of its elements. They would make their way into the twentieth century to influence the welfare bureaucracies of the Progressive era and the provisions for Social Security. CONCLUSION: THE LONG VIEW One framework for viewing the long arc of nineteenth-century family law is to chart departures from the law of persons as it was outlined in Blackstone’s Commentaries. Even though both the legal details and underlying rationale in Blackstone’s blueprint for marriage and parenting were dated, it continued to serve as an outline for the rudiments of domestic relations law well into the nineteenth century. Blackstone, then, with his emphasis on the legal fiction of marital unity and its consequence of male headship, provides us with a convenient baseline from which to map out nineteenthcentury innovations. Viewed from this perspective, the most striking trend in domestic relations law over the course of the nineteenth century was its shift toward the individuation of family members at the expense of the principle of male headship. A series of specific legal innovations chipped away at the old common law rules until the unified, hierarchical household of the Blackstonian model was a shadow of what it had been. Nineteenth-century innovations took a variety of forms. One was clearly the legitimization of divorce, which unfolded amidst a growing commitment to romantic love and marital happiness. The recognition of divorce as a legal remedy, albeit on limited terms, not only compromised the legal fiction of marital unity that lay at the heart of the Christian/common law ideal of marriage but it also paved the way for the acceptance of serial monogamy. Another innovation took the form of giving wives the right to own property independently. Despite narrow legislative goals, the married women’s property acts endowed wives as owners and earners with a legal identity apart from that of their spouses. In a culture that recast all family relations in affective terms, invested parenting with great emotional weight, and celebrated the innocence of childhood, legal innovations extended to parentchild relations as well. By endorsing a private construction of marriage, the juridical recognition of common law marriage resulted in insulating the children born in irregular unions from the disabilities of bastardy. In stark contrast to the English law of bastardy, nineteenth-century legal regimes also created a new, female-headed family in which unwed mothers enjoyed the same custodial rights as married fathers. As the notion of the child serving as a conduit of the father’s will gave way to a concern for the child’s best interests, mothers increasingly defeated fathers in custody contests, thereby Cambridge Histories Online © Cambridge University Press, 2008 278 Norma Basch eroding the father’s presumptive right of custody. Similarly, by recognizing non-biological families, the formalization of adoption put another dent in the patriarchal foundations of Anglo-American family law. It would be a mistake, however, to dismiss the limits of these reforms or ignore concerted efforts to undermine them. Although they point collectively to the democratization of the family, viewing them in an institutional framework provides a very different picture. Judicial hegemony over domestic relations reforms was as significant as the reforms themselves, and legislators undoubtedly came to expect judges to clarify, temper, and even reverse their more innovative forays. In discrete legal contests as opposed to generalized statutes, it was judges who tended to define the wife’s separate estate narrowly, who hewed more often than not to the wife’s traditional obligation of service, and who replaced the father’s absolute right of custody with their own discretionary evaluation. As a result, many elements of coverture survived, and the judicial embrace of maternalism was always qualified. When judges awarded custody to mothers, they were standing in the traditional place of fathers and transforming themselves – not the mothers – into the ultimate authority over the family. Indeed, in custody, adoption, and the law of bastardy, the judiciary turned parenthood into a trusteeship that could be abrogated by the state. The role of the federal government in policing CivilWar pensions, enforcing monogamy, and limiting reproductive freedom was another telling institutional development. It not only clouds the picture we have of women’s increasing autonomy in the family but it also anticipates the ambit of the large welfare bureaucracies of the twentieth century. How, then, are we to integrate these conflicting pictures of American family law? How are we to understand the tensions between the egalitarian and humanitarian impulses behind the legal reordering of the family on the one hand and the constraints, obfuscations, and reversals that accompanied it on the other? One way is to move beyond legal and institutional particulars to broader frameworks. If we place these tensions in a cultural framework, for example, we can read them as the agonizing contradictions between the destabilizing potential of romantic love and the regime of lifelong monogamy in which it was embedded and which the law modified. If we place them in a political framework, we can read them as the troublesome strains between liberalism and its patriarchal components. Admittedly the latter framework tells us more about what the law reveals than what it achieved, but what it reveals is a powerful and shifting dynamic between the legal construction of the family and the evolving gender system. It is instructive to consider this dynamic in a specifically nineteenthcentury American context. Although liberalism had the potential to disrupt all kinds of hierarchies, classical liberal theorists had assumed the wife’s Cambridge Histories Online © Cambridge University Press, 2008 Marriage and Domestic Relations 279 subordination and counted it among the rights of free men. Especially in the heyday of abolitionism, however, it was increasingly difficult to limit the rights of free men to men. To be sure, liberalism with its market yardstick of value and its failure to attribute value to the wife’s household services may have proffered little to wives in the way of concrete remedies, but it always carried within its tenets a compelling challenge to their subordinate status. The credo of self-ownership and its corollary of bodily integrity so central to the crusade against slavery were threats to the gender order as well as the racial order and were understood as such by judges, legislators, and moralists. The anxieties unleashed by bringing the self-contracting, rights-bearing individual of liberalism to bear on the gender system by way of family law only intensified over the course of the century, culminating in novel restrictions on abortion and birth control that would make their way into the twentieth century. Yet these were surely not the only legacy of legal change. The torrent of Gilded Age programs to police monogamy and sexuality was as much a manifestation of how the family had been transformed as an effort to restore it to traditional guidelines. And because the legal reordering of the family provided nineteenth-century women’s rights advocates with a perfect field on which to deploy liberal political theory to subvert its own gender rules, it served as a catalyst for rethinking assumptions about marriage and parenting and for exploring and exposing their connections to the gender system. This too was a legacy that would make its way into the twentieth century and beyond. Cambridge Histories Online © Cambridge University Press, 2008 9 slavery, anti-slavery, and the coming of the civil war ariela gross Enslaved African Americans who escaped to freedom wrote bitterly of the role of law in maintaining the institution of slavery. Harriet Jacob emphasized the law’s refusal to act on behalf of slaves. The enslaved woman or girl had “no shadow of law to protect her from insult, from violence, or even from death.” Frederick Douglass focused on the way law did act, turning human beings into property: “By the laws of the country from whence I came, I was deprived of myself – of my own body, soul, and spirit . . . ” Whether through its action or inaction, slaves recognized the immense power of law in their lives.1 Law undergirded an economic system in which human beings were bought, sold, and mortgaged and a political system in which two sections of the United States coexisted profitably, one a slave society and one not. As we know, this coexistence did not last, and it is tempting to read back into the antebellum period an instability in the legal edifice supporting slavery that made its collapse inevitable. Yet, as both Douglass and Jacobs realized, the law worked remarkably well for a long period to subordinate human beings one to another, though not without considerable effort in the face of contradiction, internal conflict, and external challenge. Southern slaves and Northern abolitionists, in very different ways, posed a threat to the law of sl,avery, and it took work to overcome those threats. Ultimately, however, it was a bloody civil war, and not a legal process, that resolved the contradictions of human property. Students of Southern history once supposed that law was largely irrelevant to African American culture, and to Southern culture in general. Most cultural historians of the nineteenth-century South have assumed that rituals 1 Harriett Jacobs, Incidents in the Life of a Slave Girl (Cambridge, MA, 1987), 27; Frederick Douglass, “I Am Here to Spread Light on American Slavery: An address Delivered in Cork, Ireland, on 14 October 1845,” The Frederick Douglass Speeches, 1841–1846 (New Haven, CT, 1999). 280 Cambridge Histories Online © Cambridge University Press, 2008 Slavery, Anti-Slavery, and the Coming of the Civil War 281 of honor for whites and plantation discipline for blacks replaced law as the mechanisms to resolve conflict and punish wrongdoers. Thus, histories of white Southern culture emphasized duels, lynching, and master-slave relations. Literary sources, letters, and personal papers all painted a picture of a society governed primarily by what contemporary legal scholars would call “extra-legal norms.” Studies of slave culture suggested that law had little influence on slaves’ lives, because for most slaves, the master was the law. And so the legal history of slavery focused on the extraordinary situation – the fugitive to the North, the slave who killed her master – not slavery’s everyday life. But no longer. First, law was in reality pervasive in slavery – in the social construction of race, in the regulation of daily life, in the workings of the slave market, and in the culture of slaves, slaveholders, and non-slaveholding whites. Second, the great paradoxes of slavery and freedom in the antebellum republic were all framed precisely in terms of claims to legal rights: the right to property and the right to liberty. Slaves occupied a unique position in American society – as both human and property. In constitutional terms, slavery could be viewed simultaneously in terms of both liberty and property rights. Abolitionists emphasized the liberty of all Americans; slaveholders emphasized the property rights of all white Americans, including the right to own slaves. It is a distinctive feature of slavery in the American South – slavery embedded in a system of political liberalism – that its defense was full of the language of property rights. It was the legal-political language of property, indeed, that rendered slavery and liberalism compatible. Nor were the property rights arguments of slaveholders simply defensive; they were also used aggressively and expansively. Not only did they justify holding slaves in the South, they justified carrying them into the new territories to theWest and North. The language of rights was the only language most Southerners had available to define slavery. Thomas Reade Cobb’s Treatise on the Law of Negro Slavery defined slavery in pure Lockean terms, as rights denied: “Of the three great absolute rights guaranteed to every citizen by the common law – the right of personal security, the right of personal liberty, and the right of private property, the slave, in a state of pure or absolute slavery, is totally deprived.”2 Through the denial of legal rights, the slave was put outside society. Thus, we can see that law worked on two levels during the antebellum era: below the radar, law facilitated the routine functioning of the slave system and mediated the tensions among slaves, slaveholders, and 2 Thomas Reade Cobb, An Inquiry into The Law of Negro Slavery in the United States of America (1858), §86, 83. Cambridge Histories Online © Cambridge University Press, 2008 282 Ariela Gross non-slaveholders. Above the surface, law was the object of contest between Southern pro-slavery and Northern anti-slavery forces over the future of slavery in the Union. Through a succession of constitutional “crises” involving slaves who fled to free states and migrants who brought slaves to new territories, competing views of the legality and constitutionality of slavery increasingly came into direct conflict in legal as well as political arenas. As slaves who resisted their masters or ran away pushed difficult issues of human agency into the courtroom, they also pushed the anomalous constitutional status of slavery into the forefront of political debate, adding to growing Northern fears of an ascendant “Slave Power” conquering not only political institutions but also the Constitution itself. Increasingly central on both of these levels of legal activity was the ideology of race. The power of race in the law was highlighted in the Supreme Court’s affirmation, in the Dred Scott decision, that even free blacks had no claim to rights or citizenship, but it had been building for years. By the 1820s, slavery had become the South’s “peculiar institution.” It had been successfully regionalized by Northern abolition despite pockets of continuing enslavement that contravened official law, like the slavery Dred Scott experienced on Army bases in the Northwest Territories. The regionalization of slavery brought the issue of “comity” between free and slave states to the fore, highlighting the political issues involved in every legal determination about the status of slaves brought to free jurisdictions. Race held the potential to explain and justify the line between free and unfree; in the slave states it mobilized non-slaveholding whites behind the institution of slavery, and in the free states it created a counterweight to abolitionist compassion for the enslaved. On the local level, Southern jurists’ increasing preoccupation with justifying slavery in their jurisprudence led not only to legislative crackdowns on the regulation of free blacks and on many of slaves’ “customary” rights but also to a more self-conscious effort to make law “paternalist” and thereby to prove that slavery was the best possible condition for poor, childlike “negroes.” Race was central to this new justificatory legal enterprise. Law became ever more the forum for telling stories about black character and, through it, white character. The essential character of Southern antebellum society and its laws has been debated endlessly. Was it a pre-capitalist paternalist socioeconomic system inserted into a bourgeois capitalist world or a market society of profit-minded individuals pursuing individual gain? Was law an instrument of slaveholder hegemony, a facilitator of capitalist markets, an object of contest among many makers, an arena for battles over honor? Ultimately, these attempts at global characterization of either “the South” or “Southern law” are less useful to an understanding of the way legal institutions operated both as cultural forms and as technologies of power than close attention to the more mundane, daily ways that slaves and masters, slaveholders Cambridge Histories Online © Cambridge University Press, 2008 Slavery, Anti-Slavery, and the Coming of the Civil War 283 and non-slaveholding whites, buyers and sellers of slaves framed and waged their encounters with law. We can agree with Walter Johnson: “Neither structural contradiction nor hypocritical capitalism fully describes the obscene synthesis of humanity and interest, of person and thing, that underlay so much of Southern jurisprudence, the market in slaves, the daily discipline of slavery, and the proslavery argument.” I. THE EVERYDAY LAW OF SLAVERY At the level of the day to day, in local trials, whites worked out their relationships with slaves and with one another through slaves. White men rarely faced criminal prosecution for striking slaves, but they quite often found themselves in court for civil suits regarding property damage to the slave of another. At trials, non-slaveholding whites had the chance to exercise power as jurors and as witnesses, telling stories about the character and mastery of defendants who were far more likely to be wealthy planters. Slaves had no officially sanctioned opportunity to exercise agency, but they too both consciously and unconsciously influenced outcomes in court, despite the dangers inherent in outright efforts at manipulation. Lawyers, finally, played the role of transmitters of culture as they traveled from town to town. They made their careers in the legal practice of the slave market and invested the fruits of their careers in the slave market. In all these ways, the institutions of slavery, law, and the market grew intertwined. The growing power of race in Southern society shaped all legal confrontations; courts had the power to make racial determinations, and the stories told about racial character in the courtroom helped “make race.” Despite the overdetermined quality of white Southerners’ efforts to make the boundaries of race and slavery congruent, the indeterminacy of legal standards made some legal outcomes contestable. Courts, as arenas for shaping identities, lent some power to slaves. Who Can Be a Slave? The Law of Race By the early nineteenth century, it was well-settled law in every state that only a person of some African descent could be enslaved. One’s appearance as a “negro” raised a legal presumption of one’s enslavement, but this presumption could be rebutted by evidence of manumission, whiteness, or another claim to freedom. Most states passed statutes setting rules for the determination of “negro” or, more often, “mulatto” status, usually in terms of fractions of African “blood.” Before the CivilWar, most states also stipulated either one-fourth or one-eighth African “blood” as the definition of “negro.” Yet even statutory definitions such as these could not resolve disputes about the racial identity (and hence, vulnerability to enslavement) of many Cambridge Histories Online © Cambridge University Press, 2008 284 Ariela Gross individuals. Often, they just pushed the dispute back a generation or two as courtroom inquiry turned from the racial identity of the individual at issue to her grandmother. Still, the question remained: how could one know race? In practice, two ways of “knowing” race became increasingly important in courtroom battles over racial identity in the first half of the nineteenth century, one a discourse of race as “science” and the other of race as “performance.” During the 1850s, as the question of race became more and more hotly contested, courts began to consider “scientific” knowledge of a person’s “blood” as well as the ways she revealed her blood through her acts. The mid-nineteenth century thus saw the development of a scientific discourse of race that located the essence of racial difference in physiological characteristics, such as the size of the cranium and the shape of the foot, and attempted to link physiological with moral and intellectual difference. Yet the most striking aspect of “race” in trials of racial identity was not so much its biologization but its performative and legal aspects. Proving one’s whiteness meant performing white womanhood or manhood, whether doing so before the court or through courtroom narratives about past conduct and behavior. While the essence of white identity might have been white “blood,” because blood could not be transparently known, the evidence that mattered most was evidence about the way people acted out their true nature. Enslaved women suing for their freedom performed white womanhood by showing their beauty and whiteness in court and by demonstrating purity and moral goodness to their neighbors. White womanhood was ideally characterized by a state of legal disability, requiring protection by honorable gentlemen. In nineteenth-century legal settings, women of ambiguous racial identity were able to call on the protection of the state if they could convince a court that they fit this ideal of white womanhood. For example, in the “celebrated” freedom suit of Sally Miller, her lawyer sought to link white Southerners’ confidence in the intangible but unmistakable qualities of white womanhood to identifiable acts of self-presentation and behavior his client performed: “[T]he moral traits of the Quartronne, the moral features of the African are far more difficult to be erased, and are far more easily traced, than are the distinctions and differences of physical conformation,” he informed the jury. “The Quartronne is idle, reckless and extravagant, this woman is industrious, careful and prudent – the Quartronne is fond of dress, of finery and display – this woman is neat in her person, simple in her array, and with no ornament upon her, not even a ring on her fingers.”3 3 Transcript of Trial, Miller v. Belmonti, No. 5623 (1845), Supreme Court Records, Earl K. Long Library, Special Collections & Archives, Univ. of New Orleans, La. “Quatronne” means person of one-fourth African ancestry, as in “quadroon.” Cambridge Histories Online © Cambridge University Press, 2008 Slavery, Anti-Slavery, and the Coming of the Civil War 285 The jury accepted the argument, and the Louisiana Supreme Court affirmed Sally Miller’s freedom. Her case was covered heavily in local newspapers, and her trial narrative was repeated in novels and autobiographies by abolitionist ex-slaves, William Wells Brown and William Craft, as a dramatic representation of the power relations inherent in slavery, so little caring of the “sacred rights of the weak” that it could question even a fair, white maiden. Men, on the other hand, performed white manhood by acting like gentlemen and by exercising legal and political rights: sitting on a jury, mustering into the militia, voting, and testifying in court. At trial, witnesses translated legal rules based on ancestry and “blood” into wide-ranging descriptions of individuals’ appearances, reputation, and in particular a variety of explicit forms of racial performance: dancing, attending parties, associating with white people or black people, and performing civic acts. There was a certain circularity to these legal determinations of racial identity. As South Carolina’s Judge William Harper explained, “A slave cannot be a white man.” But this was not all that it seemed, for he also stated that a “man of worth, honesty, industry and respectability, should have the rank of a white man,” even though a “vagabond of the same degree of blood” would not. In other words, “A slave cannot be a white man” suggested not only that status depended on racial identity but also that status was part of the essence of racial identity. Degraded status signified “negro blood.” Conversely, behaving honestly, industriously, and respectably and exercising political privileges signified whiteness.4 Manumission and Free Blacks As more and more people lived on the “middle ground” between slavery and freedom, black and white, they made it at once more difficult and more urgent for courts to attempt to draw those boundaries sharply and to equate race with free or unfree status completely. By the 1830s, nothing had come to seem more anomalous to many white Southerners than a free person of African descent. Yet there was a substantial population of “free people of color” in the South, partly as a result of relatively lax manumission policies in the eighteenth and early nineteenth century. Legislatures hurried to remedy the problem, as free blacks were increasingly seen to be, with a plethora of laws governing manumission. Before Southerners felt themselves under siege by abolitionists, they had allowed manumission quite freely, usually combined with some plans for colonization. But by the 1820s serious colonization plans had died out in 4 State v. Cantey, 20 S.C.L. 614, 616 (1835). Cambridge Histories Online © Cambridge University Press, 2008 286 Ariela Gross the South. In a typical Southern slave code of the latter decades of slavery, slaves could only be freed if they left the state within ninety days and if the manumitter followed other complicated rules. The rights of creditors were protected, and a substantial bond had to be posted for the care of the old or infirm freed slave. Southern states also tightened restrictions on free blacks beginning in the 1830s and accelerating in the 1840s and 1850s. In part this was a reaction to the Denmark Vesey (1822) and Nat Turner (1831) insurrections, for Vesey was free, and Turner was a foreman, a near-free slave. But it was also part of the reaction, beginning in the 1830s, to anti-slavery sentiment in the North. In the late eighteenth century, most slaveholders spoke of slavery as a necessary evil – the Thomas Jefferson position. They were racists, but they did not pretend that blacks loved slavery; rather, they took the position that given current circumstances, slavery was the best that could be done. Blacks could not survive as free people in the United States – perhaps colonization would be a very long-range solution. By the 1830s, however, Southerners had developed a defense of slavery that pronounced it a positive good. For the most part, it was a racially based defense. According to Cobb and other pro-slavery apologists, blacks were inferior mentally and morally so that “a state of bondage, so far from doing violence to the law of his nature, develops and perfects it; and that, in that state, he enjoys the greatest amount of happiness, and arrives at the greatest degree of perfection of which his nature is capable.”5 As Southerners articulated the positive-good defense of slavery more often in terms of race, they increasingly emphasized a dual image of the black person: under the “domesticating” influence of a white master, the slave was a child, a happy Sambo, as described by Cobb, but outside of this influence, he was a savage beast. As they strove to convince themselves and Northerners that slaves were happy Sambos, they more frequently portrayed free blacks as savages.With this emphasis on race, Southerners felt the need to draw the color line more clearly than ever. This placed the South’s free people of color in an increasingly precarious position. It is worth remembering that there were two quite distinct groups of free people of color. In the Upper South, where slavery was essentially dying out by the CivilWar, and also in Maryland and Delaware, free black populations were largely the descendants of slaves manumitted during the Revolutionary era. As a group they were mainly rural, more numerous, and closer to slaves in color and economic condition than free blacks in the Lower South, who were light-skinned refugees from the San Domingo revolution, creole residents of Louisiana, and women and children freed as 5 Cobb, Inquiry into the Law of Negro Slavery, 51. Cambridge Histories Online © Cambridge University Press, 2008 Slavery, Anti-Slavery, and the Coming of the Civil War 287 a result of sexual relationships. Free blacks in the Lower South tended to be mixed racially; concentrated in New Orleans, Charleston, and a few other cities; and better off economically; some of them were large slaveholders themselves. The Upper South was more hostile to free blacks because they were more of an economic threat; in the Lower South, the cities recognized gradations of color and caste more readily. Along with increased restrictions on manumission, the most important new limitations on the rights of free people of color were constraints on their freedom of movement. Free blacks were required to register with the state and to carry their freedom papers with them wherever they went. They were frequently stopped by slave patrols who mistook them for slaves and asked for their passes. If their papers were not in order they could be taken to jail or even cast into slavery. Mississippi required that, to remain in the state, free people of color be adopted by a white guardian who could vouch for their character. Increasingly, criminal statutes were framed in terms of race rather than status, so that differential penalties applied to free people of color as well as slaves, including banishment and reenslavement. In most of the new state constitutions adopted during the 1830s, free people of color were barred from testifying in court against a white person, voting, serving in one of the professions, or obtaining higher education. About the only rights that remained to them were property rights. Some managed to hold on to their property, including slaves. But by the eve of the CivilWar, white Southerners had made every effort to make the line between slave and free congruent with the line between black and white. Free people of color and people of mixed race, both slave and free, confounded those efforts. It is no surprise that they were the target of so many legal regulations. Slave Codes: “A Bill of Rights Turned Upside Down” On paper, many aspects of slaves’ lives were governed by slave codes. In practice, slaves were often able to carve out areas of customary rights contrary to the laws on the books. How, then, can we interpret the significance of the codes’ detailed restrictions on every aspect of slave life? One way to read the statutes passed by Southern legislatures to regulate slavery, James Oakes has suggested, is as “Bill[s] of Rights [turned] upside down . . . a litany of rights denied.” Slaveholders defined slavery in the terms they used to define freedom. Slaves had no right of movement, no right of contract, no right to bear witness in court, no right to own property. The codes can also be read as timelines of every moment slaves resisted often enough to trigger a crackdown. The very specificity of the laws in Southern slave codes hints at this reading. Slaves were hiring out their own time and moving freely about towns frequently enough to merit a law; slaves Cambridge Histories Online © Cambridge University Press, 2008 288 Ariela Gross were selling spirituous liquors, holding dances, and gaming frequently enough to merit a law. County court records in Natchez, Mississippi, reveal that the most frequent criminal prosecutions of blacks or whites were for selling spirituous liquors to a negro, selling spirituous liquors without a license, and gaming. It is often possible to track insurrectionary scares simply by reference to the legislative enactments of a particular region. For example, after Nat Turner’s revolt, South Carolina passed laws against burning stacks of rice, corn, or grain; setting fire to barrels of pitch, tar, turpentine, or rosin; and other very specific prohibitions. The slave codes reveal the hopes and fears of slaveholders. Particularly after the Vesey and Turner revolts, whites feared the power of black preachers, particularly free black preachers, to move slaves to rebellion. Many states passed laws dealing overtly with slave conspiracies, punishable by death. Other statutes prohibited slaves from gathering for religious meetings or dances and prohibited slaves or free people of color from preaching. State courts established enforcement mechanisms that made these legislative prohibitions real. Slave patrols, appointed by county courts or militia captains, were supposed to “visit the negro houses . . . and may inflict a punishment . . . on all slaves they may find off their owner’s plantations, without a proper permit or pass . . . ” Slave patrols were also supposed to “suppress all unlawful collections of slaves,” catch runaways, and punish slaves for other infractions. Eighteenth-century slave patrols had tended to involve a wide cross-section of the white community, but by the 1820s higher status whites in some areas appeared to think the work beneath them and relied instead on their overseers. In general, however, local white elites stayed active in patrolling. Control of the Southern labor force was too important for them to delegate to others, and slave patrols were useful adjuncts to slaveholders’ authority. Similarly, while many masters chose to punish their slaves on their own farms or leave punishment to their overseers, some local governments provided whipping houses where slaves could be sent for the customary thirty-nine lashes. Runaway jails housed escaped slaves who had been recaptured.6 Marriage and Family The slave codes illuminate another important aspect of slavery: control over the slave’s sexuality and family life. Slaves could not legally marry. Nor could a black slave marry or have sexual relations with a white female. The codes did not mention relations between white males and black slaves; slave status followed the mother and not the father. Despite the laws, whites 6 Edward Cantwell, The Practice at Law in North Carolina (Raleigh, NC, 1860). Cambridge Histories Online © Cambridge University Press, 2008 Slavery, Anti-Slavery, and the Coming of the Civil War 289 routinely recognized slave marriages – often even in courtroom testimony or in judicial opinions. Yet when it came to testifying against one another in court or charging manslaughter rather than murder in the case of a man who had caught his wife in bed with another man, judges refused to recognize slaves’ marriage. In his treatise on Slaves as Persons, Cobb justified the non-recognition of slave marriage in racial terms, advancing the myth that slaves were lascivious and their “passions and affections seldom very strong,” so that their bonds of marriage and of parenthood were weak, and they “suffer[ed] little by separation from” their children.7 In fact, family was a source of autonomy and retention of African culture for enslaved people. Some of the best historical work on slavery has brought to life the ways that slaves retained their own values despite slavery by uncovering the survival of practices of exogamy – that is, not marrying first cousins. White Southerners married their first cousins, but black slaves did not and persisted in the practice. Efforts to maintain African culture are also in evidence in naming patterns that sustained African names alongside owners’ imposition of day-names and classical names, such as Pompey and Caesar. Native-born populations of slaves appear to have had more success in self-naming – keeping kin names, especially those of fathers, in a system that legally denied fatherhood – than the first generation. This suggests that family was a source of strength in slave communities. It was also a source of resistance and a means of communication. Slaves ran away to get back to families and conducted “abroad” marriages with spouses on other farms, creating a larger community of African Americans. The importance of family made it at the same time a source of vulnerability: family breakup was a powerful threat that enhanced slaveholders’ control. It was a threat backed by experience – one-fourth to one-third of slave families were separated by sale. Family was also a powerful incentive not to run away, especially for slave women. Enslaved women who ran with their children could not get far; far more common was truancy, staying out for several days and then returning. Unmarried or married, enslaved women lived with the fear of sexual assault. Sexual assault on an enslaved woman was not a crime. While Cobb suggested that “for the honor of the statute-book,” the rape of a female slave should be criminalized, such a statute was passed in Georgia only in 1861 and was never enforced. Cobb reassured his readers that the crime was “almost unknown,” because of the lasciviousness of black women.8 In one Missouri case in the 1850s, the slave Celia murdered the master who had been raping her since she was a young teenager. Her lawyer brought a claim 7 Cobb, Inquiry into the Law of Negro Slavery, 39. 8 Cobb, Inquiry into the Law of Negro Slavery, §107, 100. Cambridge Histories Online © Cambridge University Press, 2008 290 Ariela Gross of self-defense, using a Missouri statute that gave “a woman” the right to use deadly force to defend her honor. But the court in that case found that an enslaved woman was not a “woman” within the meaning of the statute; the law did not recognize Celia as having any honor to defend. Slave law and family law also intersected in the law of property and inheritance. The most basic property question regarding slavery, of course, was the status of the slaves themselves as human property – how would that status be inherited? By the nineteenth century, it was well-settled law that slave status passed on from mother to child, guaranteeing that the offspring of masters’ sexual relationships with their slaves would become the property of the masters. In transfers as well, the master owned the “increase” of his human property: “When a female slave is given [by devise] to one, and her future increase to another, such disposition is valid, because it is permitted to a man to exercise control over the increase . . . of his property. . . . ”9 Furthermore, as one Kentucky court put it, “the father of a slave is unknown to our law. . . . ”10 By refusing to recognize slaves’ marriages or honor their family ties, Southern courts and legislatures inscribed the dishonor of slaves into law. It should be no surprise that, in the immediate aftermath of emancipation, many freed African Americans saw marriage rights as central to their claims of citizenship. A black corporal in the Union Army explained to a group of ex-slaves, “The marriage covenant is at the foundation of all our rights. In slavery we could not have legalised marriage: now we have it . . . and we shall be established as a people.”11 By identifying marriage as the foundation of citizenship, the speaker dramatized the way slavery’s denial of family ties had served to put slaves outside society and the polity. In the Criminal Courts Slaves who fought back against the injustices of their lives – especially against masters who raped them, beat their children, or separated them from their families – ended up in the criminal courts of Southern counties. In the famous case of State v. Mann, Lydia ran away from her hirer, John Mann, who shot her in the back as she fled. The question in the case was the right of the slave to life – to be safe from cruel treatment. This was the one right Cobb had said the law allowed the slave. Yet, Judge Thomas Ruffin, 9 Fulton v. Shaw, 25 Va. 597, 599 (1827). 10 Frazier v. Spear, 5 Ky. 385, 386 (1811). 11 Letter from J. R. Johnson to Col. S. P. Lee, 1 June 1866, Unregistered Letters Received, ser. 3853, Alexandra VA Supt., RG 105, National Archives, reprinted in Ira Berlin et al., eds., Freedom: A Documentary History of Emancipation, 1861–1867, Series II; The Black Military Experience (Cambridge, MA, 1982), 672. Cambridge Histories Online © Cambridge University Press, 2008 Slavery, Anti-Slavery, and the Coming of the Civil War 291 in a stark statement of the nature of slavery, held that courts would not interfere with the owner’s authority over the slave: “We cannot allow the right of the master to be brought into discussion in the Courts of justice.”12 Discipline was to be left to owners – or, as Mann was, hirers – and trust placed in their private interest and benevolence. Four years later, in State v. Will, the same North Carolina court overturned Ruffin’s decision. In this case, Will, like Lydia, resisted his master and walked away from a whipping. Like Lydia, Will was shot in the back. ButWill fought back, stabbing his owner three times with a knife.Will was put on trial for murder, but the presiding judge,William Gaston, decided that he was guilty of the lesser crime of felonious homicide. In doing so, he upheld the principle that there were limits to the master’s authority over a slave and that a slave had the right to resist the master who overstepped the limits. Gaston wrote that “the master has not the right to slay his slave, and I hold it to be equally certain that the slave has a right to defend himself against the unlawful attempt of his master to deprive him of his life.”13 Oakes comments, “It is pointless to ask whether Ruffin or Gaston correctly captured the true essence of slavery.” The two cases “reveal the divergent trajectories intrinsic to the law of slavery – the one flowing from the total subordination of the slave to the master, the other from the master’s subordination to the state.” Ordinarily, when a white person was put on trial for abusing or killing a slave, the grand jury would simply refuse to issue an indictment or the jury would turn in a verdict of not guilty. Some doctors gave abhorrent testimony offering alternative theories as to the cause of death when a slave had been whipped to death – that she might have had a heart attack or a sudden illness and that her vicious character and angry passion would predispose her to such a seizure. But an owner could win damages from a hirer, overseer, or other person who abused his slave in a civil case for trespass. In these cases, juries were much more willing to find that cruelty had taken place in order to compensate the slaveholder. Civil cases could be a big deterrent, but not to a master for mistreatment of his own slave. Neighbors of AugustusW.Walker testified that they had seen him “whip in a cruel manner his slaves and particularly a young girl 11 years old, whom he whipped or caused to be whipped at three different times the same day, eighty lashes each time and furthermore they said Walker overworked his negroes.” Walker also locked his slaves in a dungeon and frequently inflicted “as many as one hundred licks to one boy at a time” with a “strap or palette.” He made his slaves work from three-thirty 12 State v. Mann, 13 N.C. (2 Dev.) 263, 267 (1829). 13 State v. Will, 18 N.C. 121, 165 (1835). Cambridge Histories Online © Cambridge University Press, 2008 292 Ariela Gross in the morning until nine or ten at night, without meal breaks or Sundays off. In a criminal prosecution for “harsh, cruel & inhuman treatment towards his slaves,”Walker was acquitted. The judge explained the flexible standard for punishment of slaves: “the master can chastise; the slave is entirely subject to his will; the punishment must necessarily depend on the circumstances . . . if the case is a grave one, the chastisement will probably be severe, if the slave is of a robust constitution, the chastisement may be increased . . . ” In an accompanying civil case, in which Walker sued one Joseph Cucullu for selling him ten slaves “afflicted with serious maladies, diseases, and defects of the body.” Cucullu argued that any problems with the slaves could be attributed to Walker’s harsh treatment. However, the Louisiana court found forWalker in the civil case as well, above all because he did not “strike . . . at random with passion or anger,” but had a system for plantation management and discipline. The most important thing was that a master should have a regular system of “rules” that he “imposes on him[self].”14 Criminal prosecutions of slaves like Will exhibit a trend toward greater procedural guarantees for slaves. The greatest unfairness slaves faced were white juries and the exclusion of slave testimony against a white person. Unfortunately, slave testimony was allowed against a black person, and it was not uncommon for slaves to be convicted on the basis of the testimony of other slaves. Yet slaves received real defenses, often by prominent lawyers, and their appeals and writs of habeas corpus were heard all the way up the state court systems. Procedural guarantees were grudgingly conceded by men who feared their consequences, but saw them as necessary to slavery in a liberal system. The conflicts between Lydia and Mann, Will and Baxter, Ruffin and Gaston, exemplified the problem of slave resistance in such a society. When slaves resisted, they forced the law to deal with them as people. Slavery and Commerce The courthouse was one of two institutions central to Southern culture., The other was the slave market. Civil trials involving slaves were routine events that brought townsfolk and planters together to fight over their human property and, in the process, to hash out their understandings of racial character. Through rituals invested with all the trappings of state authority, both white and black Southerners again and again made the journey from one institution to the other, slave market to courthouse. 14Walker v. Cucullu, No. 326 (1866), Louisiana Supreme Court Records, Earl K. Long Library, Special Collections & Archives, Univ. of New Orleans, La. Cambridge Histories Online © Cambridge University Press, 2008 Slavery, Anti-Slavery, and the Coming of the Civil War 293 The slave markets that provided so many lawyers with their livelihoods – both as litigators and as slaveholding planters – did a vigorous business in the antebellum Deep South. Although importation of foreign slaves ended in 1808 as a result of constitutional prohibition, throughout the antebellum period the states of the Deep South continued to import slaves from the Upper South in ever greater numbers. Slave traders brought slaves from Virginia, Kentucky, and Tennessee to sell at the markets in Charleston, Natchez, and New Orleans. Overall, more than a quarter of a million slaves came into the Deep South from the Upper South each decade from the 1830s on. Local sales also accounted for a substantial part of the trade, probably more than half. Individual slaveholders sold slaves to one another directly or used local traders as intermediaries. And slaves were sold by the sheriff at public auction when a slaveholder or his estate became insolvent. In South Carolina, one state for which solid numbers are available, insolvency sales amounted to one-third of all slave sales. Southern states periodically banned domestic importation, as Mississippi did, for example, from 1837 to 1846. Bans appear to have been prompted by both economic and security considerations: sectional tensions between older, established areas that had no need of more slaves and newer areas; temporary economic panics; and reactions to well-known slave insurrections. The bans, however, were always overturned and in any case made little impression on the trade. Mississippi was the first state to develop another form of regulation in 1831, again in reaction to the Turner rebellion in Virginia; it required imported slaves to register a “certificate of character” from the exporting state, guaranteeing that the slave was not a runaway or thief. This requirement was also quite simple to circumvent, as one trader explained: all one had to do was “to get two freeholders to go along and look at your negroes. You then tell them the name of each negro – the freeholders then say that they know the negroes and give the certificates accordingly.” Prices for slaves rose throughout the antebellum period, with the exception of the panic years of the late 1830s and early 1840s. “Prime male field hands” in the New Orleans market sold for about $700 in 1846; their price had more than doubled by 1860 to upward of $1,700. To own slaves was to own appreciating assets, as important as capital as for the value of their labor. Slaveholders were an economic class whose slave property was their key asset; they moved around frequently, investing little in towns or infrastructure. Even the high level of land speculation in Mississippi and Alabama suggests that slaveholders were not particularly attached to their land. Slaves were their most important form of capital. Slaves were also the cornerstone of the Southern credit economy, for they were highly desirable as collateral for loans. Credit sales of slaves ranged from a high of 37 percent of all slave sales (1856) to a low of 14 percent (1859), Cambridge Histories Online © Cambridge University Press, 2008 294 Ariela Gross averaged 20 percent, and rarely had terms longer than twelve months; land mortgages lasted two to five years. Thus, slaves were the ideal collateral for debts. A complex web of notes traded on slaves existed, though it could, and often did, fall through in years of financial panic and high land speculation. Other segments of the Southern economy also depended on slaves. Hiring, or leasing, provided an important way for both individuals and corporate entities, especially towns and cities, to obtain labor without making the major capital investment in slaves. Slave hiring may have involved as much as 15 percent of the total slave population. Hiring relationships also took place among private parties. Slaves, in fact, were fragmented property, with so many interest-holders in any particular slave that there was no such thing as a simple, unitary master-slave relationship for most slaves and most masters. Market transactions, credit relations, and hires all led to disputes that had the potential to land the parties in court. In cases of hire, some owners sued hirers for mistreating a slave. More often, these cases resembled warranty suits in that hirers sued owners when the leased slave turned out to be “unsound,” died, or ran away. In either situation, the trial revolved around the question of who should assume responsibility for the condition and character of the slave. Most sales anticipated litigation at least indirectly by including an express warranty by the seller that a slave was “sound in body and mind and slave for life.” Form bills of sale used by slave traders generally included spaces for the sex, name, and age of the slave and for the warranty, but left the language blank to allow variation. Some bills of sale explicitly excluded certain aspects of that particular slave’s condition or character from warranty. When slave buyers were dissatisfied with their purchases, they tried to recover for the problems directly. Usually this meant confronting the seller with a demand that he take back the slave and return the purchaser’s money. Slave traders were more likely to settle such cases out of court than were private individuals. In their private writings, planters wrote of their frustration with the legal system. Benjamin L. C.Wailes, a prominent doctor and planter of Natchez, became embroiled in litigation when the life estate-holder of his plantation Fonsylvania sold and mortgaged a number of slaves without permission. After an unsuccessful suit for eight slaves sold through Miles and Adams, New Orleans commission merchants, he wrote in his diary: “Note. Never engage in a law suit if to be avoided or have anything to do with lawyers without a written agreement as to terms and compensation.”15 15 Benjamin L.C.Wailes, Diary, Sept. 2, 1859, available at Duke University Archives. Cambridge Histories Online © Cambridge University Press, 2008 Slavery, Anti-Slavery, and the Coming of the Civil War 295 Buyers, sellers, owners, and hirers of slaves most often brought their disputes to the circuit courts of their county. They went to court primarily to win monetary damages. Their suits dominated the dockets of circuit courts and other courts of first resort at the county level. In Adams County, Mississippi, about half of the trials in circuit court involved slaves, mostly civil disputes among white men regarding the disposition of their human property. Of these civil disputes, a majority were suits for breach of warranty – for example, 66 percent of the appealed cases in the Deep South and 52 percent of the trials in Adams County. Suits based on express warranties could be pled as “breach of covenant” or as “assumpsit,” both actions based in contract. In Louisiana, suits of this type were especially common, because the civil law codified consumer protections under the category of “redhibitory actions.” One could obtain legal relief for the purchase of a slave who was proven to have one of a series of enumerated “redhibitory” vices or diseases, including addiction to running away and theft.16 Although professional traders preferred cash sales or very “short” credit (notes payable in six months or one year), a significant number of buyers in local sales paid at least part of the slave’s price with notes, some of them with much longer terms. In those cases, breach of warranty might be a defense to a creditor’s lawsuit to collect the unpaid debt. Over the course of the antebellum period, litigation increased in the circuit courts because of the growing population and economy, but slave-related litigation increased grew even more quickly, indicating the rising economic centrality of slaves. Commercial law appeared to be the arena in which the law most expected to treat slaves as property – in disputes over mundane sales transactions. When slave buyers felt their newly acquired human property to be “defective” physically or morally, they sued the seller for breach of warranty – just as they would over a horse or a piece of machinery. In these and other commercial disputes, the parties brought into question and gave legal meaning to the “character” and resistant behavior of the enslaved, who persisted in acting as people. Take as an example Johnson v. Wideman (1839), a South Carolina case of breach of warranty, in which the buyer (Wideman) defended his note against the seller by claiming that the slave Charles had a bad character. According to Wideman, Charles was everything that struck terror into a slaveholder’s heart: he owned a dog (against the law); he was married (unrecognized by law); he tried to defend his wife’s honor against white men; he not only acted as though he were equal to a white man, he said he wished he was a white man; he threatened white men with 16 “Of the Vices of Things Sold,” La. Civ. Code, Bk. III, Tit. 7, Chap. 6, Sec. 3, arts. 2496–2505 (1824). Cambridge Histories Online © Cambridge University Press, 2008 296 Ariela Gross violence; he refused to work unless he wished to; and he did not respond to whipping.17 The plaintiff-seller’s witnesses told a different story. According to them, Charles was a drunkard and an insolent negro only when he lived with Wiley Berry, a “drinking, horse-racing” man himself (from whom Johnson bought Charles). As one witness explained, “He had heard of [Charles’s] drinking. He had borne the character of an insolent negro: but not in the time he belonged to the Johnsons.” Others testified that Charles was humble and worked well, that when Johnson owned him, “he was not so indolent as when he belonged to Berry.” Berry had exposed him to spirits and had whipped him frequently. Johnson’s case rested on the contention that Charles was a good slave when managed well, and the only evidence of his insolence came from his behavior under Berry and under Wideman himself. Judge John Belton O’Neall, Chief Justice of the South Carolina Court of Errors and Appeals, who presided over the trial on circuit, explained that he had instructed the jury as follows: “Generally, I said, the policy of allowing such a defence might be very well questioned. For, most commonly such habits were easy of correction by prudent masters, and it was only with the imprudent that they were allowed to injure the slave. Like master, like man was, I told them, too often the case, in drunkenness, impudence, and idleness.” O’Neall’s “like master, like man” theory of slaves’ character led him to find for the seller in this case. Thus, even a court that wanted to exclude moral qualities from implied warranty, as did South Carolina’s High Court of Errors and Appeals, still heard cases where the moral qualities of a slave were put on trial. In Johnson v. Wideman we see the range of behaviors and qualities permissible in a skilled slave. For example, when Charles confronted his first master,Wiley Berry, about Berry’s behavior with his wife, he convinced Henry Johnson that he was in the right in this dispute with Berry. This case also offers a strong judicial exposition of a common theory of slave vice: “like master, like man.” Johnson’s argument, largely accepted by the trial judge and Justice O’Neall, was that Charles’s misbehavior could be attributed to the freedom Berry gave him and the bad, example Berry set. This theory removed agency from the slave, portraying the slave as the extension of his master’s will. By painting slaves as essentially malleable in character, courts could lay the responsibility on masters to mold the slave’s behavior. Thus, sellers emphasized malleability and exploited the fear of slaves’ deceitfulness to do so. Slaveholders constantly feared that slaves were feigning illness or 17 Johnson v. Wideman, 24 S.C. L. 325 (Rice 1839). Cambridge Histories Online © Cambridge University Press, 2008 Slavery, Anti-Slavery, and the Coming of the Civil War 297 otherwise trying to manipulate their masters; a good master was one who could see through this deceit and make a slave work. Southern courts confronted the agency of slaves in other kinds of litigation arising out of commercial relationships as well, most commonly actions for trespass and other actions we would categorize today as “torts.” Owners brought lawsuits against hirers, overseers, or other whites who had abused their slaves or to recover the hire price for slaves who had fallen ill or run away during the lease term. All of the explanations of slave character and behavior outlined above – as functions of slave management, as immutable vice, as habit or disease – operated in some way to remove agency from enslaved people. Reports of slaves who took action, such as running away on their own impulse and for their own rational reasons, fit uneasily into these accounts.Yet because slaves did behave as moral agents, reports of their resistance persistently cropped up in court. At times, witnesses provided evidence of slaves acting as moral agents; on other occasions, the nature of the case required acknowledgment of slaves’ moral agency. Occasionally the courts explicitly recognized slaves’ human motivations as the cause of their “vices.” More often, these stories were recorded in the trial transcripts, but disappeared from the appellate opinions. Just as judges were reluctant to recognize slaves’ skills and abilities, they feared giving legal recognition to slaves as moral agents with volition, except when doing so suited very specific arguments or liability rules. Recognizing slave agency threatened the property regime both because it undermined an ideology based on white masters’ control and because it violated the tenets of racial ideology that undergirded Southern plantation slavery in its last decades. Judges outside of Louisiana recognized slave agency most directly in tort cases, in which a slaveholder sued another for damage to a slave when under the other’s control. Most commonly, the defendant in such a case was an industrial hirer or a common carrier, usually a ferry boat. Common carriers were generally held responsible for damages to property on board, which they insured. In Trapier v. Avant (1827), in which Trapier’s slaves had drowned crossing in Avant’s ferry, the trial judge tackled the question of “whether negroes, being the property damaged, they should form an exception to the general rule of liability in the carrier.” He determined that slaves should not be an exception. “Negroes have volition, and may do wrong; they also have reason and instinct to take care of themselves. As a general rule, human beings are the safest cargo, because they do take care of themselves.” According to the judge, the humanity of the slaves did not present enough of a problem to alter the general property rule. “Did this quality, humanity, cause their death? certainly not – what was the cause? The upsetting of the boat. who is liable fore the upsetting of the boat? The Cambridge Histories Online © Cambridge University Press, 2008 298 Ariela Gross ferriman; there is an end of the question.” The dissenting judge, however, pointed out the problem created by slaves’ human agency: if the slaves had run away or thrown themselves overboard before the ferryman had a chance to reach them, then holding Avant responsible would amount to converting his contract into a guarantee of the slaves’ “good morals and good sense.”18 In effect, not recognizing slaves as agents with free will meant holding all supervisors of slaves strictly liable for their character and behavior; recognizing slaves as agents, conversely, meant that supervisors were not required to “use coercion” to compel slaves’ behavior. The first option created the equivalent of a warranty of moral qualities in the tort context, with all of its attendant difficulties. The second option threatened anarchy. In the commercial, criminal, and family law contexts, courts wrestled with the dilemmas posed by human property. Lawyers and judges confronted slave resistance by promoting stories about the origins and development of slave character and behavior that removed rational agency from slaves. In this way, the law created an image of blackness as an absence of will, what PatriciaWilliams has called “antiwill.” Because the conflicts so often devolved into a debate over mutability or immutability of character, the focus inevitably shifted from slaves to masters. Mastery and the character of masters came into question directly under the dictum of “like master, like man,” but indirectly as well in every decision about a slave’s character that reflected in some way on her master’s control, will, or honor. Northern abolitionists always said that the worst thing about slavery was how it depraved white men’s character. Slaveholders defending slavery tried in various ways to disprove this accusation and even to show that white men improved their character through governing. By the final decades before the Civil War, most Southern slaveholders were keenly aware of the relationship between their role as masters and their character. The courtroom was one arena in which slaveholders and other white Southerners worked out their hopes and fears for themselves and their future. II. SLAVERY, ANTI-SLAVERY, AND THE CONSTITUTION Just as slavery was fundamental to the culture and economy of the South, slavery was pivotal to the compromises and conflicts of national politics throughout the early nineteenth century, and it was the central issue in the administration of a federal legal system. The constitutional compromise reached in 1787 did not hold. Increasingly, runaway slaves pressed 18 Trapier v. Avant, Box 21, 1827, S.C. Sup. Ct. Records, South Carolina Department of Archives and History. Cambridge Histories Online © Cambridge University Press, 2008 Slavery, Anti-Slavery, and the Coming of the Civil War 299 the legal system to confront the constitutional basis of slavery just as territorial expansion forced the political system to reckon with the conflict between slave labor and free labor. Pro-slavery and anti-slavery constitutional theories clashed as their advocates used the legal system to forward their political goals. The irreconcilability of their visions resulted in the ultimate constitutional crisis, civil war. Anti-slavery constitutionalism faced an uphill battle in the American legal and political arena. From the controversy over anti-slavery petitions in Congress in the 1830s through the debates over fugitive slaves in legislatures and courts, radical abolitionist positions on the Constitution were increasingly marginalized. The contest over slavery became ever more the struggle of Northern whites to head off the “Slave Power’s” threat to their own freedoms. The Abolitionist Movement The era between the American Revolution and the 1830s was the first great period of the abolitionist movement. The first white abolitionists were a group of Quaker lawyers in Pennsylvania who formed the Pennsylvania Abolition Society in 1775. These anti-slavery advocates were elite white men who worked within the political and legal system to achieve the gradual abolition of slavery. They used a variety of tactics, including petitioning state legislatures and Congress regarding specific issues, such as the domestic slave trade and slavery’s westward expansion, and litigating cases of kidnapped free blacks or runaway slaves. Although the lawyers who defended fugitives tried to work within existing law, rarely making broad arguments about the constitutionality of slavery, their legal strategies did lay the groundwork for a broader attack on the institution. Through such litigation, as well as campaigns for the rights of free blacks in the North, anti-slavery lawyers developed the legal and constitutional arguments that became the basis for abolitionism after 1830. The Pennsylvania Abolition Society lawyers hoped that a buildup of judicial victories, not landmark cases, would eventually result in the national obstruction of slavery. Numerous complaints from African Americans concerned about kidnapping drove the Society’s legal strategy, which initially targeted loopholes and technicalities in Pennsylvania’s own Gradual Abolition Act in order to free slaves within and outside the state. A number of legal mechanisms were available to protect black people within the state’s borders. The most important writ in the anti-slavery arsenal was the “great writ” of habeas corpus. The writ de homine replegiando was also used to win the release of captured fugitives and to gain jury trials for them. These writs required the recipient to “deliver the body [of a detainee] before” a Cambridge Histories Online © Cambridge University Press, 2008 300 Ariela Gross legal official. The writ de homine replegiando was even more useful than habeas corpus, however, because it required the fugitive to be released from custody until the resolution of the legal process. Abolitionist lawyers used these writs to fight for the freedom of individual slaves, case by case. By contrast, black abolitionists developed strategies that sharply diverged from the legal activism of the early white abolitionists. Black anti-slavery activists used the early media, including pamphlets and newspapers, to appeal directly to the public, rather than merely lobbying and petitioning legislators. They also relied on social organizations such as churches and benevolent societies to disseminate information and build popular support. To further these activities, the American Society for the Free Persons of Color was formed in 1830, holding its first meeting in Philadelphia to discuss national tactics for combating racial prejudice and slavery. By directly confronting the underlying racism of the colonization movement and demanding an end to slavery as well as rights for free blacks, black abolitionists spurred the advent of immediatism. White abolitionists in Massachusetts, especiallyWilliam Lloyd Garrison and Amos Phelps, joined together with black activists to advocate “immediate” abolition and integration. Abolitionism stormed onto the national scene in the 1830s with the birth of a new national organization, the American Anti-Slavery Society. Two calls to action heralded the rise of militant anti-slavery: David Walker’s 1829 Appeal to the Colored Citizens of the World and the first issue ofWilliam Lloyd Garrison’s Liberator, on January 1, 1831.Walker’s appeal exhorted African Americans to take up arms if necessary to fight slavery. In the inaugural issue of the Liberator, Garrison proclaimed, “I will not equivocate – I will not excuse – I will not retreat a single inch – AND I WILL BE HEARD.” The Liberator targeted all schemes for gradual emancipation, especially colonization. As criticisms of colonization’s hypocrisy became more prevalent in the 1830s, many abandoned the movement and devoted themselves to immediatism: not only Garrison but Arthur and Lewis Tappan, Sarah and Elizabeth Grimke, Salmon P. Chase, Gerrit Smith, Theodore Dwight Weld, and many others. Black abolitionists had called for immediate abolition before the 1830s, but it was the trends among white abolitionist leaders in that decade that made immediatism a force in national politics. The new wave of abolitionists fought for an end to segregated schools and other institutions within Northern states – winning important victories in Massachusetts – and began calling for mass action against slavery in the South. They drew in blacks and whites, women and men, establishing for the first time in an integrated movement. This new strategy of mass action revolutionized the legal work and legislative petitioning of early abolitionists. While abolitionists continued to represent fugitive slaves and Cambridge Histories Online © Cambridge University Press, 2008 Slavery, Anti-Slavery, and the Coming of the Civil War 301 to petition legislatures, they refused to obey “political roadblocks or legal limitations” as their predecessors had. Instead they “used the people to circumvent the obstacles to abolition.” Huge crowds of citizens who showed up at a trial might successfully keep a fugitive slave from being retried or “upset the cool course of the law [by] making an ‘audience’ for the judge and lawyers to contend with.”19 The American Anti-Slavery Society grew quickly in the 1830s, establishing 1,600 auxiliary branches by 1837 and collecting more than 400,000 signatures during the following year on antislavery petitions to Congress. Southerners took the groundswell of 1830s abolitionism seriously. In response to the flood of anti-slavery petitions arriving on Congress’s steps, Southerners responded with their own fierce legal and extra-legal action. A mob in Charleston, South Carolina, seized mail sacks containing American Anti-Slavery Society literature and burned them. John C. Calhoun endorsed a bill to prohibit the mailing of any publication “touching on the subject of slavery” to anyone in a slave state. These efforts to squelch free speech regarding slavery culminated in the “gag rule” controversy, in which Calhoun introduced numerous resolutions attempting to force the Senate’s refusal of anti-slavery petitions. Yet only a few years later, in 1840, the American Anti-Slavery Society split into factions, the political abolitionists forming the Liberty Party to directly effect their anti-slavery aims through political means and the Garrisonians continuing to insist that change could best be effected through public opinion. “Let us aim to abolitionize the consciences and hearts of the people, and we may trust them at the ballot-box or anywhere,” declared Garrison.20 During the 1840s, three anti-slavery groups emerged from the schism within the abolitionist movement, each with a different constitutional theory. Pro-Slavery and Anti-Slavery Constitutional Theories Of all of the constitutional theories of anti-slavery, the one that had the most in common with Southern perspectives on the Constitution was that of the ultra-radical William Lloyd Garrison. Southerners made the sound constitutional argument that the compact would never have been made if it did not recognize and support slavery; that the freedom of whites had been based on the enslavement of blacks, and that the Constitution protected property rights in slaves. Garrison declared the Constitution to be “a 19 Richard S. Newman, The Transformation of American Abolitionism: Fighting Slavery in the Early Republic (Chapel Hill, NC, 2002), 144–45. 20 The Liberator, March 13, 1840. Cambridge Histories Online © Cambridge University Press, 2008 302 Ariela Gross covenant with death, an agreement with hell” precisely for the reason that it did sanction slavery. Garrisonians, including Wendell Phillips, believed that slavery could not be overthrown from within the legal and constitutional order; extra-legal means would be required. Beginning in the 1840s, Garrison moved from his anti-political perfectionism to a constitutional program of disunion through secession by the free states and individual repudiation of allegiance to the Union. Garrison’s remained a minority perspective among abolitionists, but it was in some ways the most prescient view. Political and legal action within the constitutional system continued to be a dead end for abolitionists, who were continually put on the defensive by ever more aggressive and overreaching pro-slavery political forces wielding dubious theories of “nullification” – that the Constitution was a compact between states, which could “nullify” or withdraw from the compact whenever they chose. The political appeal of the Southern rights argument to Southern nonslaveholders depended on several linked ideas, some of which also had resonance in the North, notably the notion of white man’s democracy – that having a black “mudsill” class made possible greater equality among whites. Other Southern arguments, however, confronted the North and West with what looked like implacably expansionist claims, based in part on fear of what the South would be like without slavery – the threat that without the ability to expand its socioeconomic system into the territories, the South would be doomed to second-class citizenship and inequality in a Union dominated by an alliance of Northern and Western states. Under these conditions, Northerners for their part grew fearful that an expansionist octopus-like “Slave Power” would overwhelm and consume the free-labor North. Within anti-slavery politics, radical constitutional abolitionists such as Frederick Douglas and Lysander Spooner began to argue after 1840 that, rather than endorse slavery, the Constitution in fact made slavery illegitimate everywhere, in the South as well as in the territories. Theirs was a minority position that relied on a textual reading of the Constitution, arguing that the document nowhere explicitly sanctioned slavery and that the “WRITTEN Constitution” should not be “interpreted in the light of a SECRET and UNWRITTEN understanding of its framers.” The radicals argued that the federal government should abolish slavery in the states because it violated the Fifth Amendment due process guarantee, the Article IV guarantee of republican government, and other clauses of the Constitution. Spooner and Douglas also made originalist arguments about the founders’ intentions to have slavery gradually wither away. They claimed that the slavery clauses of the Constitution had been written in such a way as to offer no direct support to the institution, even while satisfying Cambridge Histories Online © Cambridge University Press, 2008 Slavery, Anti-Slavery, and the Coming of the Civil War 303 its supporters in the short term. According to this view, the Constitution had become perverted by acquiescence in pro-slavery custom, but its antislavery character could be redeemed by federal action: “The Constitution is one thing, its administration is another. . . . If, in the whole range of the Constitution, you can find no warrant for slavery, then we may properly claim it for liberty.” Finally, the radicals relied on a natural law interpretation of the Constitution, insisting that it had to be read side by side with the Declaration of Independence and given the meaning that best expressed the ideals of the Declaration.21 The most popular anti-slavery position, held by moderate abolitionists like Salmon P. Chase, posited that the federal government lacked power over slavery, whether to abolish it where it existed or to establish it anew anywhere. Drawing on Lord Mansfield’s famous decision in Somerset’s Case (1772), they argued that slavery was established only by positive law and only existed in those places (the South) where it had been so created. The political theory that went along with this constitutional theory was that of “divorcement,” the idea that slavery was dependent on support by the federal government and would wither away if separated from it. By 1845, divorce had given way to Free Soil, which in effect fully applied Somerset to American circumstance. This was the idea embodied in theWilmot Proviso of 1846; it eventually became the Republican Party platform and the argument of Lincoln in his debates with Stephen Douglas. It was opposed by Douglas, whose theme of “popular sovereignty” held each new state could decide for itself whether to be slave or free. The Compromise of 1850 and the Kansas-Nebraska Act of 1854 embodied popular sovereignty’s emphasis on state-by-state decision making, leading to terrible civil wars in the territory of Kansas between rival pro-slavery and anti-slavery governments, each with its own constitutions. All of these constitutional theories came into direct conflict in a series of legal confrontations involving two sets of issues: the fate of fugitive slaves in free states and territories and the future of the territories themselves. The first set of controversies, regarding fugitive slaves, came to a head largely in state legislatures and courts, as Northern legislatures sought to protect fugitives and both Northern and Southern courts wrestled with the interpretation of those statutes and of the Fugitive Slave Laws passed by Congress to implement the Constitution’s Fugitive Slave Clause. The second set of dilemmas, regarding the status of slavery in the Western territories, played out in Congress and in presidential politics in a series of short- (and 21 Frederick Douglass, “The Dred Scott Decision: Speech at New York, on the Occasion of the Anniversary of the American Abolition Society,” reprinted in Paul Finkelman, ed., Dred Scott v. Sandford: A Brief History with Documents (New York, 1997), 177, 181. Cambridge Histories Online © Cambridge University Press, 2008 304 Ariela Gross shorter) lived compromises. The two sets of controversies culminated and merged in the dramatic and infamous Supreme Court case of Dred Scott v. Sandford (1857), which represented the ultimate constitutionalization of political conflict – a case that the Supreme Court meant to resolve the conflict conclusively, but instead helped pave the way for war. Personal Liberty Laws and the Rights of Fugitives in the North Many slaves ran away, some with help from whites and free blacks; the so-called Underground Railroad had an estimated 3,200 active workers. It is estimated that 130,000 refugees (out of 4 million slaves) escaped the slave South between 1815 and 1860. By the 1850s, substantial numbers of Northerners had been in open violation of federal law by hiding runaways for a night. By running away, slaves pushed political conflict to the surface by forcing courts and legislatures to reckon with the constitutional problems posed by slaves on free soil. Later, during the war, slave runaways would again help force the issue by making their own emancipation militarily indispensable. Southern slaves in the North – whether visiting with their masters or escaping on their own – raised a difficult issue of comity for the courts to resolve. Even so-called sojourning slaves could be considered free when they stepped onto free soil. The question of whether the Northern state should respect their slave status or whether the Southern state should bow to the rule became a heated issue throughout the states. The state courts reached different answers to the question. The best precedent from the abolitionist standpoint was a Massachusetts case decided by Chief Justice Lemuel Shaw in 1836, Commonwealth v. Aves. Citing Somerset’s Case, Shaw wrote that slavery was “contrary to natural right and to laws designed for the security of personal liberty.” Therefore, any “sojourning” slave who set foot on Massachusetts soil became free; fugitives were the only exception. But Aves represented the peak of anti-slavery interpretation of comity. By the end of the 1830s, any agreement in the North about the obligations of free states to return slaves to Southern owners had dissipated. States had given divergent answers on the questions of whether legislation was necessary to secure the rights of masters and whether states could or should provide jury trials to alleged slaves.22 From the 1830s until 1850, many Northeastern states tried to protect Northern free blacks from kidnapping by slave catchers and to provide some legal protections for escaped slaves who faced recapture in the North. In most of New England, New York, New Jersey, and Pennsylvania, legislatures 22 35 Mass. 193 (1836). Cambridge Histories Online © Cambridge University Press, 2008 Slavery, Anti-Slavery, and the Coming of the Civil War 305 passed personal liberty laws to limit the recovery of fugitive slaves from within their boundaries by forbidding the participation of state authorities or the use of state property in the capture of a fugitive. Other laws gave alleged runaway slaves procedural protections in court and created various obstacles to recovery by owners. Some state statutes, such as that of Massachusetts, tied anti-kidnapping provisions to the writ of habeas corpus. One such law was the Pennsylvania personal liberty law, which gave rise to the famous Supreme Court case, Prigg v. Pennsylvania (1842). Prigg was a test case arranged by Pennsylvania and Maryland to determine the constitutionality of Pennsylvania’s personal liberty law. For the Court, Justice Joseph Story held the Fugitive Slave Act of 1793 to be constitutional and therefore concluded that a Pennsylvania law prohibiting local collaboration with slave reclaimers was also unconstitutional. He read the Constitution with the assumption that the fugitive slave clause had been necessary to the compromise that secured the Union and the passage of the Constitution. Therefore, “seizure and recaption” of fugitive slaves was a basic constitutional right, and states could not pass laws interfering with that right. But Prigg left open important questions, some of which Story purported to answer only in dicta: Could states enact laws to obstruct recapture or provide superior due process to captured slaves? Did Prigg enshrine in American law, as Story later claimed, the Somerset principle that slavery was only municipal law? Justice Story’s opinion argued that the power to pass legislation implementing the fugitive slave clause resided exclusively in Congress. Congress proceeded so to act in 1850, as part of the Compromise of 1850. For his part, Chief Justice Taney – concurring in Prigg – argued that the states, while they could not legislate to hinder recaption, could always enact measures to aid the rights of slaveholders to recapture fugitives. Abolitionists were furious over the outcome in Prigg. Garrison wrote: “This is the last turn of the screw before it breaks, the additional ounce that breaks the camel’s back!”23 Yet many anti-slavery advocates used the essentially pro-slavery Prigg decision for their own purposes in the 1840s, picking up Story’s hint that it could be read, or at least mis-read, to bolster the Somerset position, and insisting that free states must do nothing to advance slavery. Northern states passed a new series of personal liberty laws in part out of increased concern for the kidnapping of free blacks given the lack of procedural protections in the 1850 federal Fugitive Slave Act, but also out of a growing defiance against the “Slave Power.” For example, a new Pennsylvania Personal Liberty Law of 1847 made it a crime to remove a 23 The Liberator, March 11, 1842. Cambridge Histories Online © Cambridge University Press, 2008 306 Ariela Gross free black person from the state “with the intention of reducing him to slavery” and prohibited state officials from aiding recaption. It reaffirmed the right of habeas corpus for alleged fugitives and penalized claimants who seized alleged fugitives in a “riotous, violent, tumultuous and unreasonable manner.”24 The Supreme Court overturned these laws in the consolidated cases of Ableman v. Booth and United States v. Booth in 1859, in an opinion by Justice Taney upholding the constitutionality of the 1850 Act and holding that a state could not invalidate a federal law. Increasingly, slaveholding states specified that slavery followed a slave to free jurisdictions, whereas free states made the distinction between temporary sojourns, during which a slave retained slave status, and transportation to a free state or territory with the intent to remain, in which case the slave was emancipated. However, under the 1850 Fugitive Slave Law, blacks in any state, whether free or not, were in danger of being accused of fleeing from bondage. The law empowered court officials to issue warrants allowing alleged runaways to be turned over to any claimant with convincing evidence that the prisoner was a slave, without a trial. The law greatly enhanced slaveholders’ power to recover their property anywhere in the country by annulling attempts by states to protect fugitives from recapture. Furthermore, the law allowed marshals to summon “bystanders” to help them, commanded “all good citizens” to “assist in the prompt and efficient execution of this law,” and provided officials with an extra reward for determining the accused to be a fugitive.25 Gangs of bounty hunters began kidnapping African Americans to sell southward. Captured blacks’ opportunities to defend themselves were severely eroded. As many as 3,000 free blacks, fearing enslavement, headed for Canada, by the end of 1850. No longer could one be certain that free states were truly free; it now seemed to many Northerners as though the tentacles of the “Slave Power” reached to the Canadian border. Comity – recognition of the validity of the laws of one state by the sovereign power of another – had seemed for a time to be a stable compromise between the rights of property and of liberty. Joseph Story wrote in 1834 that comity was rooted in “a sort of moral necessity to do justice, in order that justice may be done to us in return.” Similarly, Cobb believed comity was necessary to “promote justice between individuals and to produce a friendly intercourse between the sovereignties to which they belong.”26 But that accommodation dissolved under the pressure of sectional conflict. Both 24 Pennsylvania Session Laws, 1847, 206–08, “An Act to Prevent Kidnapping . . . and to repeal certain slave laws.” 25 9 U.S. Statutes at Large 462–65 (1850), at 463. 26 Joseph Story, Commentaries on the Conflict of Laws (Boston, 1846), 39–45; Cobb, 174. Cambridge Histories Online © Cambridge University Press, 2008 Slavery, Anti-Slavery, and the Coming of the Civil War 307 Southern and Northern courts became increasingly aggressive. In Lemon v. People (1860), for example, New York’s highest court freed a number of slaves who were merely in transit from Virginia to Texas on a coastal vessel and had docked briefly in New York City’s harbor to refuel. Similarly, the Missouri Supreme Court, in Scott v. Emerson (1852), explained, “Times are not as they were when the former decisions on this subject were made. Since then not only individuals but States have been possessed of a dark and fell spirit in relation to slavery. . . . Under such circumstances it does not behoove the State of Missouri to show the least countenance to any measure which might gratify this spirit.”27 Missouri’s refusal to apply principles of comity to the slave Dred Scott was ratified by the U.S. Supreme Court five years later. Territorial Expansion Just as the problem of fugitives increasingly brought sectional tension to the surface, so did the seemingly inevitable march of territorial expansion. Westward expansion of the United States raised the political question of whether slave or free states would dominate the Union. The Missouri Compromise of 1820 had decreed one new free state for each new slave state; Southerners worried about the balance of power in Congress between slave and free states. The succeeding decades saw a sequence of “compromises” struck, each lasting a shorter time than the previous one. The Missouri Compromise admitted Maine as a free state and Missouri as a slave state and drew a line at the 36th parallel – all new states formed north of the line would be free, and all south would be slave. This was the most stable compromise of the antebellum period. It was upset by the annexation ofTexas in 1846. Just three months after the start of the Mexican- AmericanWar, Congressman DavidWilmot proposed an amendment to a military appropriations bill, which became known as theWilmot Proviso. It would have barred slavery in all of the territories acquired from Mexico. Although the Proviso failed to pass, it marked the beginning of the Free Soil movement. Free Soilers wanted to check Southern power and keep slavery out of new territories to protect the “rights of white freemen” to live “without the disgrace which association with negro slavery brings on white labor.” The Free Soil Party formed in 1848 to fight for free labor in the territories. Although the new party failed to carry a single state in the 1848 election, it did quite well in the North. In the 1850s, “settlements” of the slavery question came fast and furious – each one settling nothing. The Compromise of 1850 resulted in the 27 Scott v. Emerson, 15 Mo. 576, 586 *1852). Cambridge Histories Online © Cambridge University Press, 2008 308 Ariela Gross admission of California to the Union as a free state, while the other parts of the Mexican Territory came in under “popular sovereignty”; the slave trade was abolished in the District of Columbia; and the new, more stringent Fugitive Slave Law was passed. Under the 1850 law, suspected fugitives were denied the right to trial by jury and the right to testify in their own behalf. In 1854, Senator Stephen Douglas introduced a bill to organize the Kansas and Nebraska territories on the basis of popular sovereignty, officially repealing the Missouri Compromise. Douglas hoped that the Kansas- Nebraska Act would focus the Democratic Party on internal expansion and railroad building. Instead, the passage of the act split the Democratic Party along sectional lines and led to the formation of the Republican Party, which was a coalition of Northern Whigs, dissident Democrats, and Free- Soilers who first came together in Michigan and Wisconsin. The Republicans emphasized a platform of free soil and free labor for white men. In 1856, violence broke out in Kansas: the “sack of Lawrence” by pro-slavery forces was followed by the civil war that became known as “Bleeding Kansas” and John Brown’s massacre of slaveholders at Pottawatamie. Preston Brooks’ near-fatal caning of abolitionist Senator Charles Sumner on the floor of the Senate coincided with the Lawrence attack. All these events convinced free-soil Northerners that the “Slave Power” had grown impossibly aggressive. Likewise, Southerners began to believe that abolitionists’ tentacles were everywhere. It was in this overheated atmosphere that the Supreme Court decided the Dred Scott case in 1857. Chief Justice Roger Taney apparently hoped that his opinion might settle these roiling constitutional controversies. Instead, he probably hastened the resort to armed conflict. The Dred Scott Case Dred Scott v. Sandford addressed a question of comity that was similar to but not the same as that raised by Prigg v. Pennsylvania. In Dred Scott, the issue was not the fate of a fugitive to a free state, but rather of a sojourner in a free territory.Territorial expansion raised the new question of whether slaves who moved into new territories should be presumed slave or free. Chief Justice Roger Taney’s infamous decision in Dred Scott v. Sandford represented only the second time to that point that the Supreme Court had overturned an act of Congress, and it was seen by many at the time as the first shot fired in the Civil War. It was in reaction to the Dred Scott decision immediately following the Kansas-Nebraska Act that Abraham Lincoln declared, “A house divided against itself cannot stand.” The case’s long legal odyssey began when Dred Scott’s owner, John Emerson, took Scott out of Missouri, a slave state, to Illinois, a free state, and Cambridge Histories Online © Cambridge University Press, 2008 Slavery, Anti-Slavery, and the Coming of the Civil War 309 then to Minnesota Territory, a free territory. Emerson was an Army physician successively transferred to different stations. Scott’s daughter was born somewhere on the Mississippi River north of Missouri, in either a free state or territory. Scott and his daughter returned to Missouri with Emerson, who died, leaving his wife a life interest in his slaves. Scott then sued for his freedom; he won in lower court in Missouri on comity grounds, supported by earlier Missouri precedent that a master voluntarily taking a slave for permanent residence in a free jurisdiction liberated the slave. However, in 1851, the Supreme Court decided Strader v. Graham (in an opinion by Taney), ratifying a turnaround in conflict-of-laws doctrine, whereby courts were to prefer the policy of the forum state – a holding first applied in Northern courts as anti-slavery doctrine, but one that Southern courts could use too. When the Dred Scott case arrived at the Missouri Supreme Court, the Court applied Missouri law and found Scott to be a slave, noting that “[t]imes are not as they were when the former decisions on this subject were made.” Sectional conflict had made comity impossible. Dred Scott found a new master, John Sanford (brother of the widow Emerson) and, in a collusive suit, sued for freedom from his new master in another state through a diversity suit in federal court. The federal district court found that Scott’s status should be determined by Missouri law, which had already upheld his status as a slave, and he therefore remained a slave. Dred Scott appealed to the U.S. Supreme Court in December 1854, and the case was argued in February 1856. Interestingly, no abolitionist lawyers argued Scott’s case. His attorney, Montgomery Blair, was a Free-Soiler concerned with the spread of slavery into the territories. George T. Curtis, who joined Blair for the December 1856 reargument of the case, was a political conservative opposed to anti-slavery but fearful that the Taney Court might overturn the Missouri Compromise and exacerbate sectional conflict. The case presented two important questions. First, was Scott a citizen for purposes of diversity jurisdiction? Second, was Scott free because he had been taken into a free state and free territory? A third question, which could probably have been avoided, was whether Congress had the power to prohibit slavery in the territories. In other words, was the Missouri Compromise constitutional? In an era in which the Supreme Court usually strove for unanimity, there was little agreement on the Court on any one of these questions. The Court issued nine separate opinions in the case, including numerous overlapping concurrences and dissents, and many have argued that Taney’s well-known opinion spoke for a majority of one. The opinions of Justice Daniel and Justice Campbell were, if such a thing is possible, even more extreme than Taney’s. Nevertheless, Taney’s high-handed effort to “settle” the sectional conflict on Southern terms certainly had a far-reaching influence. Cambridge Histories Online © Cambridge University Press, 2008 310 Ariela Gross The most infamous part of Taney’s opinion was the first section, in which he held that Scott was not a citizen, because neither slaves nor free blacks could claim the privileges and immunities of citizenship. To reach this conclusion, Taney made an originalist argument that blacks were “not included, and were not intended to be included, under the word ‘citizens’ in the Constitution. . . . On the contrary, they were at [the time of the framing of the Constitution] considered a subordinate and inferior class of beings, who had been subjugated by the dominant race.” In fact, blacks were “so far inferior that they had no rights which the white man was bound to respect.” Even if some states, like Massachusetts, had bestowed rights on them, their state citizenship did not confer U.S. citizenship on them. Taney might have stopped there, finding that Dred Scott had no right to sue in federal court and sending him back to Missouri court. Judge Nelson’s concurrence argued more conservatively that slavery was a state question that should be (and had been) decided by the state of Missouri. But Taney was determined to answer the final question in the case, namely whether Congress could make a territory free by federal law. Taney held that the Missouri Compromise was unconstitutional and that the federal government lacked power over slavery except to protect property rights in slaves. He claimed that Article IV Sec. 3 of the Constitution, authorizing Congress to legislate for the territories, applied only to the public lands as they stood in 1789. According to this logic, the Northwest Ordinance was constitutional, but Congress had no power to legislate for the territories once people were able to legislate for themselves, reaffirming the “popular sovereignty” principle of the Kansas-Nebraska Act. A blistering, sixty-nine page dissent by Justice Benjamin Curtis attacked each and every one of Taney’s premises. Curtis painstakingly recreated the history of free blacks in the late eighteenth century, showing that in a number of states, free blacks had been voters and citizens at the time of the founding. Curtis also argued forcefully that Congress had the right to regulate slavery. Taney had hoped that his decision would lay to rest the political debate over slavery. He was not the only one to harbor this hope. In his inaugural address delivered just two days before the announcement of the decision, Democratic President-elect James Buchanan observed pointedly that the issue of slavery in the territories was “a judicial question, which legitimately belongs to the Supreme Court of the United States,” to whose decision he would “cheerfully submit.”28 Many observers saw this agreement between Taney and Buchanan as more than happenstance – in fact, as a conspiracy. 28 James Buchanan, Inaugural Address, March 14, 1857, in James D. Richardson, ed., A Compilation of the Messages and Papers of the Presidents (New York, 1897), 6:2962. Cambridge Histories Online © Cambridge University Press, 2008 Slavery, Anti-Slavery, and the Coming of the Civil War 311 In his opening campaign speech to the Illinois Republican convention in 1858, Lincoln pointed to the fact that the Dred Scott decision was held up . . . till after the presidential election . . . Why the outgoing President’s felicitation on the indorsement? Why the delay of a reargument? Why the incoming President’s advance exhortation in favor of the decision? . . .We can not absolutely know that all of these exact adaptations are the result of preconcert. But when we see a lot of framed timbers, different portions of which we know have been gotten out at different times and places and by different workmen – Stephen, Franklin, Roger and James, for instance – and when we see these timbers joined together . . . in such a case, we find it impossible to not believe that Stephen and Franklin and Roger and James all understood one another from the beginning, and all worked upon a common plan or draft . . . 29 Of course, the decision could not have had less of the effect Taney hoped for it. Frederick Douglass declared that his “hopes were never brighter than now,” after the decision came down, because he believed it would incite the North to take a firmer stand against slavery. Dred Scott almost certainly contributed to the election of Abraham Lincoln in 1860 and the onset of the CivilWar the following year. Dred Scott was never overruled by the Supreme Court, although the Thirteenth and Fourteenth Amendments, passed by Congress in 1865 and 1868, ended slavery and guaranteed civil rights for African American citizens. Justice Frankfurter was once quoted as saying that the Supreme Court never mentioned Dred Scott, in the same way that family members never spoke of a kinsman who had been sent to the gallows for a heinous crime. CONCLUSION On the eve of the Civil War, slavery was a system that functioned quite smoothly on a day-to-day level. Law helped the institution function – enforcing contracts, allocating the cost of accidents, even administering sales. Slaves who fought back against their masters could sometimes influence the outcome of legal proceedings, and their self-willed action posed certain dilemmas for judges who sought to treat them solely as human property. But the legal system developed doctrines and courtroom “scripts” that helped erase evidence of slaves’ agency and reduce the dissonance between what the ideology of white supremacy dictated relations between slaves and masters ought to be and what had actually transpired among slaves, slaveholders and non-slaveholders to bring them into the courtroom. 29 Abraham Lincoln, Illinois State Journal, June 18, 1858, reprinted in Paul M. Angle, Created Equal? The Complete Lincoln-Douglas Debates of 1858 (Chicago, 1958), 1–9. Cambridge Histories Online © Cambridge University Press, 2008 312 Ariela Gross Ultimately, it was politics that destroyed slavery. Slaves helped push sectional conflict over slavery to the surface by running away. Fugitive slaves forced the legal system to confront the issue of comity as well as the problem of territorial expansion. And because, in the United States, all major political conflict is constitutionalized, although slavery did not lead to a crisis in law, it did create a crisis for the Constitution. The Civil War was the constitutional crisis that could have ended the brief experiment of the United States. Instead, it led to a second American Revolution, a revolution as yet unfinished. Cambridge Histories Online © Cambridge University Press, 2008 10 the civil war and reconstruction laura f. edwards The Civil War and Reconstruction utterly transformed American society. Historians argue over the nature and extent of the changes wrought during the period, but there is little disagreement over the importance of the period as such: if nothing else, the sheer volume of scholarship establishes that point. Textbooks and college-level survey courses usually break with the CivilWar and Reconstruction, which provide either the ending for the first half or the beginning of the second half. Books debating the causes of the war and its implications line the library shelves and are fully represented in virtually every historical subfield: party politics, ideology, religion, the economy, slavery, race and ethnicity, the status of women, class, the West, the South, religion, nationalism and state formation, as well as law and the Constitution. Other historical issues dating from the American Revolution to the present are linked to this period as well – historians look back to the nation’s founding for the war’s roots and then trace its effects into the present. Rather than focusing on the war years or their immediate aftermath, legal historians have tended to concentrate on matters linked to it, before and after. Particular emphasis has been given to the perceived limits of the U.S. Constitution in diffusing the issues that led up to war and to the changes that occurred in federal law afterward, although a considerable body of work examines the legal implications of policy changes in the Union during the war as well. The first group of professional historians to consider these issues had been raised in the bitter aftermath of the war, and their work reflected that background. This group – influenced by the Dunning school, after its intellectual mentor,William A. Dunning, a professor at Columbia University – deemed Reconstruction an unmitigated failure. Although the work of Dunning school historians ranged widely in focus, they singled out legal changes at the federal level – specifically, the Thirteenth, Fourteenth, and Fifteenth Amendments – for particular opprobrium. Open apologists for white supremacy, these historians argued that the amendments 313 Cambridge Histories ,Online © Cambridge University Press, 2008 314 Laura F. Edwards constituted an illegal usurpation of state authority and led the country to the brink of chaos: by imposing the will of a radical minority and granting rights to African American men who were incapable of exercising them, the results destroyed the South and jeopardized the nation’s future. Inflammatory today because of its open racism, Dunning School scholarship actually reflected a reconciliation among whites, North and South, at the beginning of the twentieth century. It assumed a consensus on racial issues in all sections of the country. The war and, particularly, its aftermath could thus be characterized as an avoidable aberration, the work of radical elements in the North who captured the national stage and forced their wild schemes on an unsuspecting populace. The Dunning school has had a remarkably long purchase on the scholarship of the period, including legal history. The aftershocks ofWorldWar II, when the scope of the Holocaust was revealed, dealt a final blow to its overtly racist props. But its themes continued to define the basic questions about legal change: Was the Civil War inevitable, within the existing constitutional framework? To what extent did postwar policies alter fundamentally the legal order of the nation? Later historians writing in the shadow of the civil rights movement addressed those questions by focusing on Reconstruction’s promise of full civil and political equality to African Americans. One strand of the scholarship has emphasized the failures. A combination of judicial foot-dragging and political maneuvering turned back the clock nearly to where it had been before the war. Not only were white Southerners allowed to regain control, they were also allowed – even encouraged – to ignore new federal law and to create a new racial system that closely resembled slavery. To make matters worse, federal courts then turned to the Fourteenth Amendment to buttress the position of corporations at the expense of labor, creating new inequalities from the very laws that were intended to promote greater equality. Where some historians have seen a glass half empty, others have seen it half full. Federal policy, particularly the Fourteenth Amendment, was a “second American revolution” that provided the constitutional basis to fulfill at last the promises of the first. Progress came slowly, culminating only in the mid-twentieth century with the civil rights movement. But those changes never would have been realized at all had it not been for the policies of the Reconstruction era. The tendency to see Reconstruction as an era that promised great legal change has spilled over into the scholarship on the Civil War. Recent histories have treated the war as if it were inevitable, a fight that had to be waged to clear the way for what came next. They characterize the conflict as the collision of two distinct social orders, each with different conceptions of Cambridge Histories Online © Cambridge University Press, 2008 The Civil War and Reconstruction 315 individual rights, the role of law, and the reach of the state. Only one could survive. One body of scholarship has focused on the dynamics leading up the war, with an eye toward explaining why conflicts reached the point where the existing institutional order could no longer contain them. This work has pointed to inherent weaknesses attributable to the Constitution, particularly the lack of authority at the federal level, which short-circuited the development of a strong, effective nation-state. Those weaknesses not only contributed to the outbreak of the war but they also presaged problems that the reconstructed nation would need to address afterward. Another body of scholarship has looked to the war years more directly as a precursor to Reconstruction, examining wartime policies within the Union and the Confederacy to contextualize postwar policies and reactions to them. This work has tended to emphasize change rather than continuity by showing how the war, itself, took the nation in new legal directions. Most work undertaken within the field of legal history has focused on the national level, exploring mandarin policy debates and then tracing the effects through the states and, from there, to people’s lives. This scholarship treats causation as a process that works from the top down, with the most momentous changes emanating from the three branches of the national government. Lately, though, a body of work has emerged that not only expands the field of vision to include law at the state and local levels but also locates the sources of change outside the federal government. Not all of this work falls within the field of legal history, at least as traditionally conceived: it is to be found in women’s, African American, labor, and Southern history and is inspired by the approaches used in social, cultural, and economic history. Nevertheless, this body of scholarship both engages questions that have been central to legal history and highlights the legal component of issues not usually considered in that field. As this work shows, the war opened up a series of debates about the location of legal authority and the daily operation of law. It also reveals that legal change flowed from below as well as above, directed by the actions of ordinary people in all sections of the country who confronted questions about law in the course of the war and its aftermath. The theoretical implications of federal law filtered through the courts, but the practical application occurred in local areas, both North and South. That dynamic drew ordinary Americans further into conflicts about the operation of law, its scope, and its ends. Here, I unite the traditional work of legal history with the new approaches that contemplate law from the perspective of social, cultural, and economic history. I develop one central argument: the Civil War forced the nation to confront slavery. The implications of that confrontation reached beyond the status of former slaves to transform law and legal institutions in ways that affected all the nation’s citizens. I begin with the Civil War itself, Cambridge Histories Online © Cambridge University Press, 2008 316 Laura F. Edwards focusing on changes during the war years that took the nation in new legal directions afterward. In both the Union and Confederacy, many wartime policies addressed immediate concerns and were not intended as reforms to law or the legal system. Yet, whether explicitly intended to change law or not, wartime policies laid the groundwork for profound changes in the legal order afterward. The second section turns to Reconstruction, but takes the analysis beyond the brief formal span of that period and into the last decades of the nineteenth century. Here I trace the legal difficulties presented by emancipation, which necessitated the integration of a formerly enslaved population into the legal order. I look beyond federal cases resulting from the Reconstruction amendments and other national legislation for signs of what Reconstruction meant at the state and local levels. An exclusive focus on the federal level can understate the extent of change in this period by characterizing the problem as one of establishing and implementing the civil and political equality of African Americans within the existing legal order. As difficult as that was, the issues become more problematic when considered in the context of states and localities. Events at these levels reveal that the extension of rights to African Americans required structural change in the logic and institutions of law. The implications reached out in unpredictable directions, involving issues seemingly unconnected to the war and people whose legal status was not directly affected by Reconstruction policies. I. THE CIVIL WAR From the outset, questions about law, particularly the location of legal authority, were central to the Civil War. Secessionists, of course, asserted state sovereignty over most legal issues. At the outbreak of the war, debates over states’ rights had become inextricably tied to sectional differences connected to slavery. Those claiming to represent “the South” advocated an extreme states’ rights position, whereas their counterparts from “the North” predicted the end of the Union should such a view prevail. Yet the polarized rhetoric overstated the differences between the two sections. It also oversimplified the underlying issues by conflating questions about governing structures with disagreements over the content of the resulting decisions. Those issues centered on federalism – the relative balance of legal authority between states and the federal government. Federalism had not always divided the nation into opposing geographic sections. At the time of the nation’s founding, for instance, Southern slave holders were among those advocating a stronger federal government. In 1832, during the Nullification Crisis, most Southern political leaders still rejected the extreme states’ rights position of South Carolina radicals. Even in subsequent decades, as states’ Cambridge Histories Online © Cambridge University Press, 2008 The Civil War and Reconstruction 317 rights became a lightning rod for sectional differences, the rhetoric did not accurately describe federalism’s practical dynamics, to which the balance of state and federal authority was as much a means as an end. Political leaders shifted back and forth, depending on the particular issue. Stances on the Fugitive Slave Act (1850) and the U.S. Supreme Court’s decision in Dred Scott (1857) are representative. Many Northerners opposed both as illegitimate encroachments on states’ established purview over the legal status of those who lived within their borders. Many Southerners supported them as necessary means to uphold property rights, as established in their own states and threatened by other states’ laws. However heated, debates remained possible as long as both sides accepted the legitimacy of the existing legal order. The breaking point came when Southern political leaders rejected that order. Political leaders remaining in the Union did not, nor did they seek fundamental change in it. Yet, change is what resulted, on both sides of the conflict. Recent research has focused on the Union, particularly the dramatic increase in federal control over issues that previously had rested with states, local areas, and individuals. Scholars have shown how the evolution of policy in the Union during the CivilWar laid the groundwork for the dramatic legal changes of Reconstruction. Their analyses also tend to echo the terms of contemporary debate, namely that centralization would remove law from the people. Yet, tracing the implications beyond the federal arena suggests additional layers to the issue. In daily life, the results of increased federal authority were more ambiguous, altering people’s relationship to law in unforeseen ways. In those areas occupied by the Union Army, for instance, federal presence actually had democratizing tendencies. In other policy realms traditionally considered as attempts to increase opportunities for ordinary Americans – such as the transcontinental railroad and the opening of Western lands – federal policies had very different effects. Historians have not considered Confederate policies to have had the same kind of long-term impact on the nation’s legal order as those of the Union. That conclusion is understandable, in the sense that Confederate laws were fleeting products of a short-lived political experiment. Even so, their implications were still lasting, because states’ rights led in two, contradictory directions that left deep trenches in Southern soil. Conducting a war to establish states’ rights required a centralized, federal government. By the end of the war, the Confederate national government actually had assumed far more authority than the U.S. government ever had, at least on paper. In practice, however, the continued commitment to states’ rights undercut the central government’s legitimacy and tied it up in controversy. The upheaval of war, which was fought primarily on Confederate soil, further undermined the legitimacy of government at all levels. It was not just the war, moreover, Cambridge Histories Online © Cambridge University Press, 2008 318 Laura F. Edwards that produced conflicts over law. Different people had long defined law in their own terms: the dislocation of wartime provided opportunities for those differences to emerge. The result was a radical decentralization of legal authority that went far beyond what states’ rights advocates ever imagined or desired. The end of the war may have led to the collapse of both the Confederate government and the legal order that it tried to create. But the conflicts generated by that government and its policies defined the postwar years. The Union In mobilizing to defend the existing legal order, those in the Union ended up changing it. As often has been the case in U.S. history, war went hand in hand with an increase in federal authority. Abraham Lincoln began using the open-ended nature of presidential war powers almost immediately in his efforts to hold the border states of Maryland, Kentucky, and Missouri in the Union. He suspended civil rights, threatened martial law to force votes against secession, and then forestalled further conflict through military occupation. Lincoln continued to make liberal use of presidential powers throughout the war. In 1862, he announced that anyone who resisted the draft, discouraged others from enlisting, or was deemed disloyal to the Union war effort would be subject to martial law. That meant dissenters would be tried in military courts rather than in state or local courts, where juries might be more sympathetic. He also suspended constitutional guarantees, such as the writ of habeas corpus, thereby closing off the means by which those arrested through executive order could contest imprisonment. Executive authority expanded in other directions as well, particularly through the draft and theWar Department. While the draft represented a major encroachment by the federal government on the rights of its citizens, the War Department became a model for modern bureaucracy, as it developed an elaborate structure to manage those drafted into the military and to oversee occupied areas. Congressional Republicans followed suit, extending the federal government’s reach to wage war more effectively. Funding the army’s operations required the complete overhaul of the nation’s financial structure and the centralization of authority over it. Congress also enhanced federal power by expanding the scope of the judiciary. Concerns about dissent led to the Habeas Corpus Act of 1863, which enhanced the power of federal officials vis-`a-vis the states and expanded the jurisdiction of federal courts. That same year, Congress also created the Court of Claims to settle claims against the U.S. government, which formerly had been settled in Congress. Claims multiplied exponentially as a result of the war. Cambridge Histories Online © Cambridge University Press, 2008 The Civil War and Reconstruction 319 Not all wartime initiatives, however, were connected to the war. Many were part of the Republican Party’s political agenda, which advocated more federal involvement in the nation’s economy. What Republicans hoped to accomplish was an extension of the existing economic and legal order to encompass the generality of the population. Their goal was evident in the party’s slogan, “free soil, free labor, free men,” evoking a polity based on independent producers along the lines of the Jeffersonian ideal. In that ideal, male farmers and artisans owned the means of production (land or the tools of their trade), which allowed them to direct their own labor and that of their families. Male economic independence then grounded the legal order, because it entitled men to rights: access to the legal system through full civil rights as well as the ability to alter and create law through political rights. Economic independence thus secured the entire nation’s future by ensuring a responsible, engaged citizenry, who were equal before the law. Like most ideals, this one was more consistent in theory than in practice. Despite the rhetorical emphasis on equality, inequality was integral to it. By the 1850s, most adult white men could vote and claim the full array of civil rights on the basis of their age, race, and sex. But for others, age, race, and sex resulted in inequalities. The legal status of male, independent producers, for instance, assumed the subordination of all domestic dependents – wives, children, and slaves – to a male head of household and the denial of rights to them. Free African Americans were included in theory but not in practice. The free black population had increased in the decades following the Revolution, with abolition in Northern states, the prohibition of slavery in many Western territories, and individual emancipations in the South. State and local governments had responded by replacing the disabilities of slavery with restrictions framed in terms of race. Even for free white men, the ideal of economic independence and legal equality had never fully described reality. For many, economic independence had been difficult to achieve. Their situation deteriorated as capitalist economic change intensified in the antebellum period, for those changes eroded the link between economic independence and legal rights as state legislatures uncoupled claims to rights from the ownership of productive property. Numerous legal restrictions still attached to those without visible means of support and even those who performed menial labor. The theoretical link between economic independence and legal rights nonetheless persisted. If anything, its symbolic significance acquired more importance over time, as the Republican Party’s popularity suggests. The notion of a republic of independent producers resonated widely and powerfully, even among those who did not enjoy its promises in their daily lives. Placing those promises at the center of its platform, the Republican Cambridge Histories Online © Cambridge University Press, 2008 320 Laura F. Edwards Party hoped to use federal power to create more independent producers and promote their interests. Secession gave Republicans a decisive majority in Congress and the opportunity to act on this agenda, which they did, even as the war raged around them.With the 1862 Homestead Act, they opened up settlement of Western lands that had been tied up in sectional controversy. The act made land more readily available to individual farmers than previously. It also prohibited slavery, which Republicans deemed incompatible with the interests of independent producers. To encourage farmers’ success, Congressional Republicans provided for the development and dissemination of new agricultural methods through the Land-Grant College Act and a new federal agency, the Department of Agriculture. Then they tied all these individual farms together in a national economic network with the Pacific Railroad Act, which subsidized construction of a transcontinental railroad. To bolster manufacturing, Congressional Republicans passed protective tariffs. Financial reforms that helped fund the war effort figured prominently as well. Many of those changes, including the creation of a unified national currency and a central bank, did for finance what the railroad did for transport, facilitating capital transfers and economic exchanges across the nation’s vast expanses. At their most idealistic, Republicans hoped that these economic programs would enhance individual rights, particularly those of free white male household heads. Yet, with the exception ofWestern settlers, few ordinary farmers, artisans, and laborers benefited from Republican economic programs. Republican initiatives instead fueled a competitive, national economy that swallowed up small, independent producers. Railroad corporations gained the most directly, pocketing millions of acres of public land and other federal incentives. Those who did own their farms or shops were no longer the kind of independent producers posited in the ideal. Cornelius Vanderbilt, for instance, hardly fit the category although he owned his own railroad “shop.” But, then, neither did farmers who presided over large, mechanized enterprises, sold most of what they produced, and bought most of what they consumed. The Republican economic future was one of wage labor, not independent producers. That created unforeseen contradictions, because the Republican legal order was still based on independent producers, not wage work.Wage laborers were included among the “free men” of Republican rhetoric, in the sense that they owned their own labor, could sell it at will, and could enjoy whatever they earned in doing so. If they were adult, white, and male, they also could claim full civil and political rights, at least in theory. But in practice, they were legally subordinate to their employers, who enjoyed rights as independent producers that wage workers did not. Property rights gave Cambridge Histories Online © Cambridge University Press, 2008 The Civil War and Reconstruction 321 employers extensive authority over their factories. Those rights extended over laborers while they were on the job, where they could do little to alter working conditions on property that was not their own. In this context, the legal equality that wage workers theoretically enjoyed as citizens could actually compound their subordination: in law, Vanderbilt and his employees were equal, preventing legal intervention on employees’ behalf; while as a property owner, Vanderbilt could do whatever he wished with his property, preventing legal intervention on employees’ behalf. Many Republicans’ reluctance to expand federal authority beyond its traditional bounds compounded these problems. They were comfortable using federal power to promote economic growth, the principle of equality before the law, and the Union. But they were unwilling to use it to address the inequalities that resulted in practice, whether economic or legal. Doing so, they argued, pushed centralization too far and threatened individual liberty. That stance shaped popular perceptions of the federal government during the Civil War. Despite Republican intentions to distribute existing economic opportunities and legal rights more broadly, at least among the free white male population, most ordinary Northerners actually experienced federal authority through the draft, taxes, and military service. Those encounters were not always positive, even for those who supported the war effort: the federal government did not give; it took – resources and lives. It offered little in return, other than rhetorical promises of freedom and equality. That situation only reinforced existing suspicions of centralized authority and limited possibilities for its future use. Slaves and the Future Legal Order of the Union The Republican Party’s reluctance to use federal authority to rectify inequalities among individuals carried over into slavery. Although most Republicans opposed slavery, not all advocated its abolition in those areas where it already existed. Only a small minority favored the extension of full civil and political rights to former slaves – and many of those were free blacks who identified with the Republican Party but could not vote because of racial restrictions on suffrage in their states. Many Republicans considered any intervention in slavery to be a dangerous projection of federal authority onto the states and a fundamental violation of individual property rights. That the federal government might go further, mandating the legal status of free blacks or anyone else, was not on the political horizon in 1860. Echoing the Republican Party’s platform, Abraham Lincoln opposed only the extension of slavery in Western territories at the time of his election. Otherwise he promised to leave the regulation of slavery, where it already existed, to the states. Cambridge Histories Online © Cambridge University Press, 2008 322 Laura F. Edwards From the war’s outset, free blacks in the North tried to turn the war for Union into one for the abolition of slavery and the legal equality of all free people, regardless of race. So did slaves in the Confederacy. Even before the states of the upper South seceded, slaves along the South Carolina coast began fleeing to U.S. naval vessels. By August 1861, several thousand were camping with General Benjamin Butler’s army at Fortress Monroe, Virginia. Permanent U.S. posts in North Carolina, South Carolina, and Georgia early in the war made it possible for more African Americans to seize their freedom. Wherever Union troops went, slaves found them and followed them. They did so at great risk. Runaways faced execution if recaptured by Confederates and an uncertain future if they remained in Union camps. African Americans’ actions slowly pushed the military to intervene in slavery. At first, commanders did not really understand that escaped slaves expected freedom once they made it to Union lines. Many considered slaves either too stunted by the institution of slavery or too inferior racially to understand the concept of freedom, let alone to act so decisively to obtain it. Nor did Union officers know what to do with these refugees, since their own commander-in-chief, President Abraham Lincoln, still insisted that nothing would be done to interfere with slavery. In fact, the Fugitive Slave Law mandated that all runaways be returned. Existing law and Republican policy statements, however, did not anticipate the situation facing the Union armies.With thousands of African Americans crowding into Union camps and following federal troops, military officials had no choice but to adapt. Union commanders also saw the strategic benefits of harboring the enemy’s slaves and were quick to appreciate the value of a ready labor supply for themselves. The specific policies, though, were uneven and a | | |