Vol. 14 No. 5 (May 2004), pp.337-341

THE CREATION OF AMERICAN COMMON LAW, 1850-1880: TECHNOLOGY, POLITICS, AND THE CONSTRUCTION OF CITIZENSHIP, by Howard Schweber.  New York: Cambridge University Press, 2004.  304pp. Cloth, $60.00. £45.00.  ISBN: 0521824621.

Reviewed by George Thomas, Department of Political Science, University of Oklahoma, gthomas@ou.edu

This book combines two of the most interesting developments in the study of law and politics in recent years to great effect. The first is the turn to comparative analysis, stemming from the recognition that comparison is essential to more capacious empirical claims about law and legal development. The second is the turn to state courts in the U.S. as under-explored, if not neglected, terrain in the study of American law and politics.

At the heart of Howard Schweber’s THE CREATION OF AMERICAN COMMON LAW, 1850-1880 is a comparison between the development of a distinctly American common law in the North, and the adherence to traditional common law understandings in the South.  Driving this legal change was the technological development of the railroads. That is, the development of railroads in the North led these state courts to adapt the common law to accommodate “the need for speed.” Southern state courts, on the other hand, remained wed to traditional common law maxims. And they did so, in part, from a political commitment to slavery. The shift in common law doctrines in the North was linked to a particular construction of citizenship, recreating our understanding of civic identities and obligations, which was profoundly at odds with slave society.

Schweber begins with the common law principles salus populi suprema lex est (“the good of the people is the supreme law”) and sic utere tuo ut alienum non laedas (“use your own property so as not to harm that of another”).  While noting that these two principles of the common law were at times in tension, Schweber suggests that they represented a balance between order and liberty—key to nineteenth century “police powers” regulation—that articulated the governing principles of private right and public good (p.16). Embedded in such understandings was a particular conception of citizenship, one that was rooted in local community and obligations, and turned on distinct and particular relations between persons. As Schweber explains: “In the adjudication of any given case, the basic common law rule was that the rights and duties of the parties would be determined based on their specific relationship to one another” (p.19). With the birth and growth of the railroads—traditional disputes between two neighbors, say, over the fencing of cattle—took on a new cast. Were railroads private land? Public highways? While the railroads were very fast, they were slow to stop. The result was that they roared across the countryside smashing passengers and freight and often killing livestock and people. Naturally, these disputes ended [*338] up in state courts. Confronted with these new cases, judges who sat on state courts in the North engaged in a sweeping reevaluation of traditional common law concepts, particularly the venerable maxim salus populi, to accommodate technological progress. Rather than situating the railroads within traditional common law categories, the common law was altered to facilitate “the need for speed.”

If the common law has oft been described as a labyrinth, or medieval jumble to the untutored eye, in railroad cases brought before the northern state courts on the eve of the Civil War, these principles were rendered more general and universal, yielding the modern categories of American legal reasoning. So, for example, the courts developed a “general theory of negligence” that “replaced an array of different kinds of liability applicable to different situations, relationships, and legal status” (p.34). This was driven by a reconceptualization of the “public welfare.” In early nineteenth-century common law, this maxim was moored in particular local communities—one’s duties and rights were “conceived in terms of the welfare of one’s fellow citizens as individuals” (p.2). This was transformed into an abstract conception of “the people”—a people who had an interest in technological progress. This transformation of common law rules resulted in dramatic change in the political philosophy of citizenship, rendering it more democratic in its universal application. But this also entailed a universal duty, which Schweber aptly dubs, “The Duty to Get Out of the Way.”  Citizens were expected to be familiar “with standards for the conduct that was required to promote progress.” Thus, while the construction of citizenship became more liberal insofar as its universal scope entailed a robust vision of equality against social hierarchy (at least for those who could meet these minimal standards), at its core was the notion of public duties rather than private rights.

In contrast to their northern brethern, southern jurists resisted such changes. Indeed, based largely on a desire to maintain the political order of slavery, southern elites were particularly inhospitable to the railroads and adaptation to technological innovation. They tenaciously clung to older common law doctrines and categories.

To substantiate these claims, Schweber turns to an exceedingly well-crafted comparative study between North and South. The primary focus is on Illinois in the North and Virginia in the South to demonstrate this bifurcated legal development. But these states are not at the extreme edges of the North-South divide. In fact, Illinois is a very “southern” northern state, and Virginia a fairly “northern” southern state, making them likely candidates to cut against Schweber’s argument rather than support it. In the detailed chapters on Illinois and Virginia, Schweber examines the political and legal culture of these states and then turns to an exhaustive analysis of court cases that take up claims involving the railroads. He rounds this comparison out in two additional chapters that turn to state court decisions in three additional states each from North and South, capturing variation within each region, as well as between them. In analyzing these cases, Schweber meticulously documents a general and compelling pattern of [*339] dramatic change in the North and stasis in the South. In this, THE CREATION OF AMERICAN COMMON LAW is a model of comparative analysis.

Let me take a specific example to illuminate this pattern. Many of the earliest railroad cases in Illinois dealt with damage to private property—particularly cattle hit by trains. Given the conditions of Illinois—an open, free, and sparsely populated land—cattle were free to roam. The duty was on a property owner to maintain an adequate fence to keep stock out. Without such a fence, one could not recover damages to property. This rule—which one court opinion said had been the custom in Illinois so long that, quoting Blackstone, the memory of man runneth not to the contrary—was dramatically altered in a series of cases in the 1850s (p.66).  Rather than treating the railroads as private property owners that would have to fence off the rails to keep stock out, fitting the old categories and the principle of sic utere, they were treated as public highways. Now, stock would have to be fenced in. The courts did not stop here, which would have been an alteration from past cases, but one rooted in traditional common law categories of duties owed between stock-owners and railroad operators. Instead, the courts spun out a more far-reaching responsibility—a duty on the part of all citizens to avoid harm. This “Duty To Get Out of the Way” saw the railroads as a public need, not merely a public highway, which created a new and universal duty for all citizens to accommodate that need. 

If Illinois was a harbinger of change, Virginia was resolute in affirming old categories. Indeed, in an 1857 case where precisely the same issues were at stake, a Virginia court simply invoked the maxim sit utere—noting that the cow had “a legal right to travel” and found the railroad liable (p.177).  Even when Virginia courts treated the rails as a public highway, they still treated the disputes as between private parties where the railroad had an obligation to avoid injury to others. Schweber persuasively argues that southern slavery reinforced the traditional categories, as it was “inimical to the standardization” of citizenship, which would directly challenge the social and political hierarchy that was essential to maintaining slavery (p.179).

Schweber’s account of citizenship, based around public duties rather than private rights, directly challenges conventional understandings of liberal citizenship. In this, he confirms recent scholarship, such as William Novak’s THE PEOPLE’S WELFARE, while at the same time revealing how such conceptions were altered by legal and technological change. This is also an illuminating study in fleshing out the public dimensions of nineteenth century America prior to the expansive “state-building” of the early twentieth century, again adding to recent scholarly work along these lines such as Novak’s, Laura Jensen’s PATRIOTS, SETTLERS, AND THE ORIGINS OF AMERICAN SOCIAL POLICY and Susan Sterret’s PUBLIC PENSIONS. Like these works, Schweber challenges traditional dichotomies between public and private that have been central to conventional understandings of American political development.

Yet, provocative and persuasive as Schewber’s narrow claims are, his [*340] overarching view of citizenship remains somewhat underdeveloped. Did these public duties extend wholly beyond the railroads? And, more importantly, isn’t the notion of public duties delimiting private rights for a genuinely public purpose, still compatible with a robust notion of private rights? Scholarship on state police powers jurisprudence in constitutional cases suggests just this sort of relationship between rights and powers existed in large swathes of legal development in the late nineteenth century (Gillman 1994). This is not necessarily at odds with Schweber’s claims, but it may suggest possible limits to how far-reaching they are. Schweber’s construction of American citizenship—as manifest in those who had a right to be heard in courts of law—as liberal and republican seems to fit this model; although his notion that universal duties applied equally to all, which he dubs liberal, could just as easily be cast as republican. Here the distinctions between liberal and republican views of citizenship are not as conceptually sharp as they might be. At times Schweber argues powerfully against the traditional liberal conception—noting that the construction of citizenship actually “reduced the importance of the individual” against the public (p.271). But there may be cause for concern that Schweber, like Novak, overplays the emphasis on “duties” and the “public good” much in the manner that Hartz once overplayed “individualism” and “rights.” Even supporters of “moderate liberalism”—perhaps I should say especially—have long criticized this view of American liberalism as historically inaccurate, while also rejecting (anti-liberal) civic republicanism as historically unfounded (Stoner 1994).  These same scholars have even insisted that a tempered liberalism informed by republican duties best captures the dominant view of citizenship from the late eighteenth century—long before it took root in northern state courts. Thus, just as Schweber seeks to do, they have offered a more rounded picture of American political thought than is captured by either traditional liberalism or civic republicanism—one, in fact, rooted in the common law itself.

This view of liberalism as embracing duties and rights, balancing individualism and community, and the particulars of common law with the abstract principles of liberalism has found its greatest expression in scholars working to recover a common law understanding of American law and constitutionalism (Stoner 1994; 2003; Carrese 2003). Moreover, these scholars have labored assiduously to recover an understanding of the common law that is not shaped by Oliver Wendell Holmes’ view of it as “judge made” law. Schweber himself, drawing on Holmes, calls this “historical jurisprudence” in that it recognized common law as a human construct, which embraced liberty, public order, and adaptation to particular circumstances. None of this, however, would surprise scholars who seek an alternate view of the common law (even while they reject the Holmesian vision). Even as such scholars insist upon the “gothic” complexity of common law, with its roots in history and custom, they argue that this needs to be weighed against its more general principles; it is precisely this blend of abstraction and particularity that manages the common law and makes it, at its best, more than easily adapted “judge made” law. Wherever [*341] one comes down on the merits of this debate, it is too bad Schweber does not even make a nod in the direction of this rather prominent understanding of the common law.

Perhaps this mild criticism is unfair. Schweber is not explicitly engaged in these higher order legal debates, nor is his work normative. Still, his work has profound implications for our understanding of the common law and the contours of American citizenship— both of which are deeply implicated in this other scholarship. Indeed, Schweber’s book, far beyond its masterful illumination of how railroads influenced legal development in nineteenth century America, will spark serious debate about the common law, citizenship, and political and legal development. As such, it will be of wide interest to scholars in all of these fields.

REFERENCES:

Carrese, Paul. 2003. THE CLOAKING OF POWER: MONTESQUIEU, BLACKSTONE, AND THE RISE OF JUDICIAL ACTIVISM. Chicago: University of Chicago Press.

Gillman, Howard. 1994. THE CONSTITUTION BESIEGED: THE RISE AND DEMISE OF LOCHNER ERA POLICE POWERS JURISPRUDENCE. Durham: Duke University Press.

Hartz, Louis. 1955. THE LIBERAL TRADITION IN AMERICA. New York: Harcourt Brace and Company.

Jensen, Laura. 2003. PATRIOTS, SETTLERS, AND THE ORIGINS OF AMERICAN SOCIAL POLICY. Cambridge: Cambridge University Press.

Novak, William. 1996. THE PEOPLE’S WELFARE: LAW AND REGULATION IN NINENTEENTH-CENTURY AMERICA. Chapel Hill: University of North Carolina Press.

Sterett, Susan. 2003. PUBLIC PENSIONS: GENDER AND CIVIC SERVICE IN THE STATES, 1850-1937. Ithaca: Cornell University Press.

Stoner, James, Jr. 2003. COMMON-LAW LIBERTY: RETHINKING AMERICAN CONSTITUTIONALISM. Lawrence: University Press of Kansas.

Stoner, James, Jr. 1994. COMMON LAW AND LIBERAL THEORY: COKE, HOBBES, AND THE ORIGINS OF AMERICAN CONSTITUTIONALISM. Lawrence: University Press of Kansas.

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Copyright 2004 by the author, George Thomas.