The Creation of American Common Law, 1850–1880 : Technology, Politics, and the Construction of Citizenship

America developed its own system of the "common law" (the name for legal principles developed by judges) in the mid-nineteenth century, abandoning the legal system inherited from England. This comparative study of the development of American law contrasts the experiences of North and South by a study of Illinois and Virginia, supported by observations from six states. It has an original comparative focus highlighting the connections between legal development, American political thought, and American political and economic development. Cover......Page 1 Half-title......Page 3 Dedication......Page 4 Title......Page 5 Copyright......Page 6 Table of Contents......Page 7 Acknowledgments......Page 9 Introduction......Page 11 1 North and South......Page 23 Blackstone in America: The Reception of English Common Law and the Movement for Reform......Page 26 The North: Railroads, Progress, and Legal Innovation......Page 39 The South: Slavery, Reaction, and Legal Stasis......Page 48 Abraham Lincoln and the Northern Mind......Page 52 2 Illinois......Page 54 The Illinois Supreme Court, 1850–60......Page 71 Clashing Property Rights: Stock Crossing Cases......Page 73 Common Carrier Liability and the Creation of Extracontractual Duties of Care......Page 94 Injuries to Strangers: Crossing Cases......Page 100 Passengers......Page 107 Employees: The Illinois Fellow-Servant Rule......Page 121 5 The North......Page 128 Ohio......Page 129 Vermont......Page 140 New York: Learned Hand......Page 146 Conclusion......Page 156 6 Virginia through the 1850s......Page 157 Virginia: East and West......Page 158 The Constitutional Convention of 1850......Page 172 7 The Common Law of Antebellum Virginia......Page 178 The Challenge of Corporations......Page 182 Stock Cases......Page 186 Injuries to Persons......Page 190 Contributory Negligence and the Fellow-Servant Rule......Page 198 8 Virginia’s Version of American Common Law......Page 204 Damage to Property......Page 210 Injuries to Strangers......Page 214 Corporations Public and Private......Page 226 Damage to Property: Stock and Slaves......Page 236 Injuries to Persons: Crossing Cases......Page 246 Contractual Relationships......Page 249 The Postbellum South: The Adoption of Modern Doctrines in Georgia, North Carolina, and Kentucky......Page 255 10 Legal Change and Social Order......Page 269 Changes in American Legal Doctrine: The Case of Third-Party Beneficiary Contracts......Page 274 The Nature of Legal Citizenship......Page 278 Index of Cases......Page 283 Bibliography......Page 289 Index......Page 303 Cover 1 Half-title 3 Dedication 4 Title 5 Copyright 6 Table of Contents 7 Acknowledgments 9 Introduction 11 1 North and South 23 Blackstone in America: The Reception of English Common Law and the Movement for Reform 26 The North: Railroads, Progress, and Legal Innovation 39 The South: Slavery, Reaction, and Legal Stasis 48 Abraham Lincoln and the Northern Mind 52 2 Illinois 54 The Illinois Supreme Court, 1850–60 71 3 “The Memory of Man Runneth Not to the Contrary” 73 Clashing Property Rights: Stock Crossing Cases 73 Common Carrier Liability and the Creation of Extracontractual Duties of Care 94 4 “Intelligent Beings” 100 Injuries to Strangers: Crossing Cases 100 Passengers 107 Employees: The Illinois Fellow-Servant Rule 121 5 The North 128 Ohio 129 Vermont 140 New York: Learned Hand 146 Conclusion 156 6 Virginia through the 1850s 157 Virginia: East and West 158 The Constitutional Convention of 1850 172 7 The Common Law of Antebellum Virginia 178 The Challenge of Corporations 182 Stock Cases 186 Injuries to Persons 190 Contributory Negligence and the Fellow-Servant Rule 198 8 Virginia’s Version of American Common Law 204 Damage to Property 210 Injuries to Strangers 214 Corporations Public and Private 226 9 The South 236 Damage to Property: Stock and Slaves 236 Injuries to Persons: Crossing Cases 246 Contractual Relationships 249 The Postbellum South: The Adoption of Modern Doctrines in Georgia, North Carolina, and Kentucky 255 10 Legal Change and Social Order 269 Changes in American Legal Doctrine: The Case of Third-Party Beneficiary Contracts 274 The Nature of Legal Citizenship 278 Index of Cases 283 Bibliography 289 Index 303 "This book is a comparative study of American legal development in the mid-nineteenth century. Focusing on Illinois and Virginia, supported by observations from six additional states, the book traces the crucial formative moment in the development of an American system of common law in northern and southern courts. The process of legal development and the form that the basic analytical categories of American law came to have are explained as the products of different responses to the challenge of new industrial technologies, particularly railroads. The nature of those responses was dictated by the ideologies that accompanied the social, political, and economic orders of the two regions. American common law, ultimately, is found to express an emerging model of citizenship, appropriate to modern conditions. As a result, the process of legal development provides an illuminating perspective on the character of American political thought in a formative period of the nation."--BOOK JACKET This book is a comparative study of the American legal development in the mid-nineteenth century. Focusing on Illinois and Virginia, supported by observations from six additional states, the book traces the crucial formative moment in the development of an American system of common law in northern and southern courts. The process of legal development, and the form the basic analytical categories of American law came to have, are explained as the products of different responses to the challenge of new industrial technologies, particularly railroads. The nature of those responses was dictated by the ideologies that accompanied the social, political, and economic orders of the two regions. American common law, ultimately, is found to express an emerging model of citizenship, appropriate to modern conditions. As a result, the process of legal development provides an illuminating perspective on the character of American political thought in a formative period of the nation. The term common law means the body of rules created over time by judges, as opposed to positive law - that is, status created by legislative enactment.