Commerce, Labor, and Taxation

This chapter discusses the development of commerce, labor, and tax laws in the second half of the nineteenth century. It covers contracts, negotiable instruments, the law of sales, usury laws, insurance, bankruptcy, admiralty, labor and law, federal taxation, state and local tax, and death taxes. The law of contract occupies a special place in American law in the nineteenth century. The dominance of contract was one of the sovereign notions of the nineteenth century. By constitutional mandate, no state could “impair” the obligation of contracts. Contract law was also one of the basic building blocks of legal study.

The Underdogs: 1850–1900

This chapter discusses laws covering the poor, women, family, and races in the second half of the nineteenth century. The American system provided a voice, and a share in the economy to more people, and to a greater percentage of the population, than most of the Old World countries did. But decisively not everybody. Women lacked rights and were definitely the weaker sex, socially speaking. For blacks, for Native Americans, for the Chinese, for the unorganized and the powerless in general, this great democracy had little enough to offer. However, there were some changes in the late nineteenth century. A movement, staffed by volunteers, arose to make charity more “scientific,” and to bring some sort of order out of chaos. In addition, a small but enthusiastic band of people, inside and outside of government, worked hard to improve the lot of the poor and the institutions that served them.

The Bar and Its Works

This chapter discusses the bar, covering its organization, legal education, and the legal literature of the law. The bar was open to almost all men in a technical sense. But class and background did make a difference. Jacksonian ideology should not be taken at face value. The bar was, for one thing, somewhat stratified, even in the nineteenth century. At the beginning of the twenty-first century, there is a tremendous social distance between a Wall Street partner on the one hand, and on the other hand, lawyers who scrambled for a living at the bottom of the heap. Lawyers from wealthy or professional backgrounds were far more likely to reach the heights than lawyers from working-class homes. In 1800 and 1850, there were no large law firms, and hardly any firms at all.

The Law of Personal Status: Wives, Paupers, and Slaves

This chapter discusses the law on marriage and divorce, family property, adoption, poor laws and social welfare, and slavery and African Americans in the United States. In the colonial period, the United States had no courts to handle matters of marriage and divorce. Marriage was a contract—an agreement between a man and a woman. Under the rules of the common law, the country belonged to the whites; and more specifically, it belonged to white men. Women had civil rights but no political rights. There were no formal provisions for adoption. A Massachusetts law, passed in 1851, was one of the earliest, and most significant, general adoption law. The so-called poor laws were the basic welfare laws.

Law and the Economy: 1776–1850

This chapter focuses on regulation in the early nineteenth century. The nineteenth century is considered the high noon of laissez-faire. Government, by habit and design, kept its hands off the economy and let the market do its magic. The first half of the century, in particular, was strongly pro-enterprise, pro-growth. The aim of public policy was the release of creative energy and that meant economic energy, enterprise energy. Government reflected what its constituents wanted. It did what it could to boost the economy, which could mean subsidy or outright intervention. Government intervention, or government regulation, primarily meant the states, not the federal government.

Outposts of the Law: The Frontier and the Civil-Law Fringe

This chapter discusses the history of American frontier law. The new nation faced the problem of how to deal with the western lands. Some of the states had huge, vague, and vast claims to chunks of western land, stretching out far beyond the pale of settlement; other states did not. The Ordinance of 1787 dealt with the issue of governance and the future of the western lands. It set basic law for a huge area of forest and plain that became the states of Ohio, Indiana, Illinois, Michigan, and Wisconsin. The Ordinance of 1790 extended the influence of the Northwest Ordinance into what became the state of Tennessee.

The Republic of Bees

This chapter details changes in American law from the eighteenth century onward, covering federal and state constitutions, judges, organization of courts, and civil procedure, and the law of evidence. The colonies declared themselves independent in 1776. However, American law continued to borrow from English law. English doctrines that were needed and appropriate were welcome. Between 1776, and the middle of the nineteenth century, there developed a true republic of bees; their flowers were the social and economic institutions that grew up in the United States. American conditions and ideas were the lawmakers that made American law a distinctive system: a separate language within the common-law family.

Regulation, Welfare, and the Rise of Environmental Law

This chapter discusses changes in American law in the twentieth century covering land use, environmental law, intellectual property, regulation of business, and business law. The twentieth century was a century of land-use controls. An important legal invention was zoning. The central idea of zoning is to divide a town or city into zones or segments and to regulate what kinds of land use are allowed in each of these segments. Some zones will be limited to one-family houses, others will be open to apartment buildings, stores and offices, and even to factories. New York City was a pioneer in the zoning movement. After the state passed an enabling act, New York City adopted the first comprehensive zoning ordinance (1916). Zoning soon spread to city after city. By 1930, it was pretty much the rule in both large and small cities and in the suburbs as well.

Internal Legal Culture in the Twentieth Century: Lawyers, Judges, and Law Books

This chapter discusses changes in the legal profession in the twentieth century, covering legal ethics, the organized bar, legal education, legal literature, and the twentieth century bench. The dominant theme of the twentieth century was growth, and nowhere was this more evident that in the legal profession itself. At the beginning of the century, there were some 100,000 lawyers in the country. At the end of the century, there were about a million—the population had more or less doubled, but the number of lawyers had increased by a factor of ten. This growth process had accelerated in the last part of the century; in the early 1980s, there were about 600,000 lawyers—400,000 more joined their ranks in the next generation.

Crime and Punishment

This chapter discusses the development of criminal law in the second half of the nineteenth century, covering the statute law of crimes, crime rates, insanity, punishment and correction, and victimless crimes. The formal criminal law in the late nineteenth century was by and large a matter of statute. The concept of the common-law crime had been wiped out in federal law. The concept also decayed on the state level. As of 1900, some states still technically recognized the possibility of a common-law crime. Other states, by statute, had specifically abolished the concept. Only acts listed in the penal code were crimes, and nothing else. In some states, the courts construed their penal codes as (silently) abolishing common-law crime. Where the concept survived, it was hardly ever used; the penal codes were as a practical matter complete and exclusive—the total catalog of crime.