Heart versus Head: Judge-Made Law in Nineteenth-Century America

By Peter Karsten

Challenging traditional accounts of the development of American private law, Peter Karsten offers an important new perspective on the making of the rules of common law and equity in nineteenth-century courts. The central story of that era, he finds, was a struggle between a jurisprudence of the head, which adhered strongly to English precedent, and a jurisprudence of the heart, a humane concern for the rights of parties rendered weak by inequitable rules and a willingness to create exceptions or altogether new rules on their behalf. Karsten first documents the tendency of jurists, particularly those in the Northeast, to resist arguments to alter rules of property, contract, and tort law. He then contrasts this tendency with a number of judicial innovations--among them the sanctioning of 'deep pocket' jury awards and the creation of the attractive-nuisance rule--designed to protect society's weaker members. In tracing the emergence of a pro-plaintiff, humanitarian jurisprudence of the heart, Karsten necessarily addresses the shortcomings of the reigning, economic-oriented paradigm regarding judicial rulemaking in nineteenth-century America.

Originally published in 1997.

A UNC Press Enduring Edition -- UNC Press Enduring Editions use the latest in digital technology to make available again books from our distinguished backlist that were previously out of print. These editions are published unaltered from the original, and are presented in affordable paperback formats, bringing readers both historical and cultural value.

• Language: English
• Publisher: The University of North Carolina Press
• Release date: Nov 9, 2000
• ISBN: 9780807862353

Peter Karsten

Peter Karsten, author of numerous books and articles on military, cultural, and legal history, is professor of history at the University of Pittsburgh and codirector of the Pittsburgh Center for Social History.

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An Introduction to This Tale of Two Voices

The law speaks in many voices. Some may sound ethereal, others efficient, still others benevolent. So it is; so it was.

I am not referring here to the law as pronounced by legislatures—to statutory (or positive) law or to such rights, duties, and limitations as were expressed in federal and state constitutions. I will have something to say about those kinds of law, but only with regard to how various state and federal supreme court justices of the nineteenth century (jurists) reacted to them, because this book is about those jurists and the rules that they administered, determined, and sometimes created regarding private suits in the realms of contract, property, and tort. In short, I ask how American jurists of the nineteenth century dealt with the common law and equity rules of private law.

I am concerned here with that law’s voice in nineteenth-century America. I will frequently (and necessarily) refer to the voices of English jurists of the nineteenth and of previous centuries as well, and will occasionally allude to the colonial era and the twentieth century, but the American judiciary of the nineteenth century will be the focus of our attention. I offer two reasons for this focus. First, if one wants to know about jurists and what they may have done to the rules of law, it is difficult to speak with much authority about the eighteenth century. We know some things about supreme court justices and how they functioned in that century in some of the colonies, but the available materials simply do not allow us to discuss with much confidence their positions and views. The matter is altogether different for the entire nineteenth century, for, beginning in the 1790s, a steadily growing stream of published appellate court reports, supplemented by homegrown treatises, supply us with abundant means of hearing what American jurists were saying about, and sometimes doing to, the English judge-made rules of law that their more obscure predecessors may well have also known and addressed. (For more on this explosion and its significance see chapter 1.)

Second, and more significant, a large body of scholarship produced in the fields of law and history treats jurists of the first sixty years of the nineteenth century as major players in the development of law, the polity, and the economy. The antebellum jurists who sat on the benches of Massachusetts, New York, Pennsylvania, and the U.S. Supreme Court, in particular, have been represented as men of genius, shaping new rules best adapted to their countrymen’s needs and wants, particularly those of the burgeoning economy. Called by some the Creative Period, by others the Golden Age of American Law, the years before the Civil War were ones in which jurists wrote in a Grand Style.¹ This is a much celebrated judiciary, but the fact is that there would be giants like Doe, Holmes, Appleton, Harlan, Field, Dillon, Cooley, and Ryan in the postwar years as well. Moreover, men relatively unknown to us, sitting on the benches of Illinois, Iowa, Kansas, Kentucky, Missouri, New Hampshire, Tennessee, Wisconsin and even little Rhode Island, had important and interesting things to say too, things that were sometimes not in accord with their respected northeastern compeers. Numerous rules adopted in Massachusetts, New York, and Pennsylvania were rejected in many other jurisdictions. And this was particularly so of rules that seemed to favor corporate defendants. Yet this has not been appreciated. Chief Justice Lemuel Shaw of the Massachusetts Supreme Judicial Court is well known; his counterparts in Illinois, Iowa, Kansas, Kentucky, Missouri, and Tennessee are not, though it was often their rule, their law, that prevailed in most of the states by the 1890s.

One tendency, then, of those who have written of this Golden Age of American Law has been to focus on a relatively small number of well-known jurists and jurisdictions. Another tendency has been to focus on the economy as the motive behind legal innovations or as the beneficiary of them. We have been told, variously, that jurists embraced the ideology of market liberalism’s umpired contest of selfish interests, that they redefined rules, recast doctrines, of the law of contract, property, and tort in order to release new economic energies, to aid entrepreneurs at the expense of the weak, to force subsidies to growth from the victims of the process, or to ensure that scarce economic resources were utilized efficiently.² These are slightly different ways of expressing what happened. The authors of these phrases disagree with one another in significant ways to be sure, but that need not concern us here, for more important than their disagreements is what they agreed upon, which is this: In various ways the developing American economy, its agents, and its ideological spokesmen led antebellum jurists to replace a common law that embodied earlier protective and paternalistic doctrines with a colder, impersonal set of rules ultimately serving the juggernaut of economic growth at the expense of those crushed in its path.³

These interpretations can be thought of as a single paradigm, one I will refer to as an economic-oriented one, or simply as the reigning paradigm. Every leading text and sourcebook,⁴ and most major monographs produced by the current generation of American legal historians, reflect one or another of these perspectives. There is something to what they claim. The amazing thing is how little that something amounts to. In my view, these economic-oriented interpretations have got it almost entirely backward: To begin with, jurists of early- and mid-nineteenth-century America did not do a great deal of tinkering with the common law. They received common-law precedents, rules, and principles from English court reports and treatises, and they then applied these to cases at hand, with little alteration or variation. They believed that they required considerable justification for contravening the wisdom of generations of sage jurists whose legal logic and principles they could appreciate and whose judgments they respected. This was the Jurisprudence of the Head.

In some instances, however, some American high courts chose to differ with their English (and usually with their Westminster-facing New England) counterparts with regard to specific rules they found to be illogical, inappropriate, or unjust. We will explore these particulars largely in the second part of this book, but suffice it to say now, these innovative moments almost never produced rules friendlier to corporate entrepreneurs than the former English ones; they produced just the opposite—that is, the new rules favored relatively poor litigants. They were almost uniformly pro-plaintiff and anti–corporate entrepreneur (the Jurisprudence of the Heart). In fact, the propensity of nineteenth-century American jurists to alter common-law rules in order to aid the weak and the poor is so clear that I marvel that someone else has not written this book before me.⁵

Furthermore, the years of judicial innovation began later, in the 1830s, and persisted longer, well into the late nineteenth century, than has been thought. The conventional wisdom divides the history of American common-law making in the nineteenth century into an innovative antebellum era of instrumentalism (the use of rules by jurists as an instrument to achieve some pragmatic end) and a postbellum era of formalism (when jurists applied precedent and acted as if all legal rules were immutable).⁶ I hereby declare that division null and void. Jurists initiated changes infrequently in the first quarter of the century. (I count only four that originated then.) They initiated far more in the second and third quarters of the century. (I counted ten and eleven, respectively, that were introduced in those years.) While I identified only three that had their origins in the century’s final quarter, many of the innovations created in one or another state court in the third quarter of the century spread to others in the final quarter. I suspect that, were I to have extended the range of my inquiry to the first quarter of the twentieth century, I might have found that several innovations usually associated with those years had roots in decisions of one or another state court’s decision in the late nineteenth century. But this is mere speculation. What I do feel confident in saying is that the lion’s share of noteworthy judicial innovations appeared between the 1830s and the early 1880s. And this is not the conventional wisdom.

THE JURISPRUDENCES OF HEAD AND HEART

Most nineteenth-century American jurists were fundamentally conservative in that they generally deferred to English precedent and yielded to the logic and principle of the doctrines or rules to be found either there or in the opinions of their respected northeastern compatriot colleagues. Theirs was a doctrinal method—that is, they did not conceive of their role as the weighing of the practical consequences of deciding a particular case in one way or another, but instead searched for the essential nature of the issue before them to be found in certain premises dictated by the nature of law and legal relationships.⁷ These premises, often shaped into doctrines or rules, they sought in the words of the great English jurists of the past (and a number of homegrown American legal geniuses as well) in their appellate reports and treatises. They practiced a Jurisprudence of the Head. And this is as true of those of the allegedly creative antebellum years as it is of the allegedly formalist late nineteenth century. But many of these jurists were, on occasion, driven by conscience and principle to alter certain common-law rules in order to produce justice. Generally, on these occasions their motives were of Judeo-Christian origin and served the needs of relatively poor plaintiffs, not corporate defendants. At these moments, they practiced the Jurisprudence of the Heart.

Some jurists occasionally signaled in mere dicta their wish that they could aid this or that litigant for some reason were it not for the existence of a rule or precedent. On other occasions they actually did so, by interpreting a rule in a novel way, by creating a principled exception to it, or by rejecting it outright. In a very few of these instances, the new rule benefited entrepreneurs, and I indicate this and report such instances wherever I found it to be so; but the fact is, these instances were extremely uncommon (I found only two). The far more frequent use by jurists of law as an innovative instrument of policy, the far more common instances of judge-made change, essentially benefited the weak and the poor, the victims of soulless corporations or insensitive employers. We can clearly detect evidence of numerous instances of their finding ways around an obnoxious rule or, indeed, of their changing it in order for those victims to emerge victorious. Specifically, these instances included: acting in favorem libertatis in slave manumission cases; helping fugitives, sojourners, and their abolitionist friends; permitting workers what their labor was worth when they quit special contracts they had not entirely fulfilled; allowing poor litigants to enter into contingency-fee agreements with attorneys to gain their day in court; providing superior servant, different department, safe tool, and safe place exceptions to the fellow-servant rule; devising competent servant, subcontractor, complaint-of-the-hazard and no-warning-of-the-hazard exceptions to the assumption-of-risk rule; creating an attractive nuisance fiction to make trespassing children injured by dangerous objects into invitees; refusing to view those injured while attempting heroically to rescue or protect others from danger as being contributorily negligent; ceasing to impute the contributory negligence of a parent to a child injured by a negligent driver in the street; affirming damage awards to victims of railway, streetcar, and steamboat accidents three times as large as those levied against other such tortfeasers; sanctioning damage awards for loss of enjoyment and nervous shock; refusing to allow defendant railroad physicians to examine injured plaintiffs without their permission; refusing to deduct insurance payments to the beneficiary of one wrongfully killed from damage awards; allowing third-party gift beneficiaries to a contract to sue on the contract; sanctioning charitable bequests and spendthrift trusts; finding their way around the nonliability rule for road and bridge authorities whose negligence had led to injuries; abandoning as unneighborly the ancient-lights easement; and allowing agricultural tenants the value of their improvements. There were instrumentalists on nineteenth-century American high courts, but their instrumentalism, their use of law as a purposive instrument to achieve a goal, was far kinder and gentler to those suing corporations, or being sued by creditors, than the reigning paradigm has maintained.⁸

With a tiny handful of exceptions, nineteenth-century jurists did not create any new rules favoring Capitalists. Moreover, they were not cut off from the egalitarian reform impulses, the child-centered culture, or the christian civilization around them. On the contrary, most were very much a product of their age, and their opinions reflect this fact with a frequency that makes it astounding that their basic humanitarianism has been so little noted. Jurists on several state courts created notable innovations in legal rules, and I want to direct our attention to these changes in the law, nearly all of which can fairly be described as efforts to apply democratic/republican values and Judeo-Christian ethics to legal problems addressed inadequately by existing rules.⁹

I suppose many readers are not primarily interested in the purely legal facets of this book. They should be aware that the story of Heart versus Head is very much a part of the greater story of nineteenth-century America. The interaction of power and culture sometimes produces offspring. Among the seats of power are those of supreme court benches, and those who occupied them in the nineteenth century were the creatures of their culture, a culture that became increasingly egalitarian and humanitarian. The rules these jurists created, therefore, had one or more of these characteristics: they were child-centered, reflected a concern with community and neighborliness, and were responsive to the needs of the poor and weak and to human suffering in general. In these regards they reflected the larger culture, and we can learn more of that culture in the story of the creation of these new rules.

The opinions that announced these innovations were often buttressed by good public policy dicta, often referring to neighborly or Christian behavior and sometimes offering biblical references or locating the offensive, older rule’s origin in a feudal past. Such archaic rules would be set aside for others bottomed on justice¹⁰ and promising more humane public policy. The public policy rationales for these pathbreaking opinions sometimes emphasized the inequity of the case or the social conditions of the plaintiff: The archaic rule (champerty, in this case) had shut . . . the door of justice . . . to the poor, who may be oppressed, whereas the new rule (regarding spendthrift trusts, in this case) placed trust funds left to the poor and helpless beyond the reach of unprincipled schemers and sharpers, so as to keep the gaunt wolf of grinding poverty from the home door of those near and dear.¹¹ On other occasions the rationales more generally referred to the barbarous archaic rule, in contrast to the humanity of the law as properly stated by the court.¹² On still other occasions these two rationales were joined, as when Pennsylvania’s Justice Daniel Agnew condemned the doctrine which imputes the negligence of the parent to the child as one repulsive to our natural instincts and repugnant to the condition of that class of persons who have to maintain life by daily toil.¹³

There were humane innovations, then. But not every jurisdiction adopted them. A powerful conservative impulse held many jurists, especially those in the original thirteen states, to the doctrines of the past. Drawn to the principles to be found in English precedent, and to the symmetry that their application and reapplication produced, they resisted many of the innovations. Law, according to this view, should flow from the Head, not the Heart.

That was the dichotomy that Perry Miller settled on in his famous study of The Legal Mentality of the years from the American Revolution to the Civil War. The great issue of the nineteenth century, he wrote, was the never-ending case of Heart versus Head, and the legal mentality’s real controversy with their society was that they stood for the Head against the Heart. Miller’s jurists were conservative and pessimistic, distrustful of enthusiasm, revivals, and reform. He offered U.S. Supreme Court justice William Johnson as authority: It is the unenvied province of the Court to be directed by the head, and not the heart.¹⁴ Jurists who emphasized the need to draw upon benevolent affections in judging cases and finding the law were treated by Miller as if they were engaging in a vast subterfuge designed to mislead the public. Thus, while he noted the words of Chancellor James Kent (Wisdom is as much the offspring of the heart as of the head) and Jesse Bledsoe (An able and upright judge does, among men, perform the office of God’s viceregent), he dismissed them as strategies intended to confound their opponents. Jurists were employing a masterful subtlety when they reversed the order of the Head versus Heart dichotomy in defending their profession.¹⁵

Miller’s legal mentality, however, was unidimensional. Drawing too heavily upon eastern voices for authority, his story missed the diversity and complexity captured by a Heart versus Head dichotomy. It missed, for example, the voice of the Tennessee Valley, offered by Justice John Haywood, that associated every heart of that state’s high court bench with the humanity of the law, as well as the voice of the Iowa Cornbelt, offered by Justice S. M. Weaver, in an opinion adopting the humane attractive nuisance rule: This new rule, Justice Weaver and his colleagues believed, reflected the instincts of the heart.¹⁶ The tension between Heart and Head is the central story of the common law in nineteenth-century America, and Heart won out over Head in such contests as it entered as often as it lost. The story of this tension, of these contests, can be seen in the following chapters. It was in some ways a struggle between a Westminster-facing, tradition-bound northeastern judiciary and their western colleagues on the benches of the newer states, but it was also a personal, inner struggle for many ambivalent individual jurists.

Part I, Old Channels and Moorings, introduces the reader to the taught legal tradition, to the Jurisprudence of the Head. After describing and attempting to explain the strength of this approach to judicial decision making in chapter 1, I offer two examples of it from the domain of property law. In chapters 2 and 3 I offer more elaborate sets of illustrations of this jurisprudence’s persistence in the use of the familiar channels and markings of the English common law in the fields of sales, agreements for the benefit of a third party, and negligence suits. A brief Entr’acte offers the two examples of the Jurisprudence of the Hand (be it visible or invisible) that I detected, the prudent-investor rule and the balancing of the equities in pollution nuisance suits, mere eddies in the stream of nineteenth-century private law in the United States. Part 11, Strong Currents, consists of six chapters documenting the opening of six new gates for relatively poor and previously helpless plaintiffs in the fields of negligence and contracts for personal service, as well as the closing of another gate that had led to the construction of rather unneighborly walls. These are my illustrations of the Jurisprudence of the Heart.

REPLACING THE ECONOMIC DETERMINIST PARADIGM WITH A HEART VERSUS HEAD MODEL

My pathway toward the writing of this book ought to be made known in order that you may judge better my objectivity and better understand my perspective. While a graduate student in American history at the University of Wisconsin in the mid-1960s I drew deeply from the same economic interpretations of our past that lie behind the work of economic-oriented legal historians. I found myself more comfortable with the views of Charles Beard and William Appleman Williams (two who emphasized the importance of economic issues in public policy), for example, than with those of their critics, and my first book reflects that.¹⁷ I minored in law and took both of Willard Hurst’s courses while at Wisconsin. In the late 1960s and early 1970s I read all of the books and articles representing the reigning paradigm, particularly those of Lawrence Friedman, Morton Horwitz, and Richard Posner. Hence, when I began to offer a course on American legal history at the University of Pittsburgh in the late 1970s, I found myself assigning Friedman’s text, Hurst’s Law and the Conditions of Freedom, articles by Posner and Horwitz, and copies of many of the cases that one or another of these scholars had identified as significant or illustrative of the pro-entrepreneurial instrumentalism of the antebellum years.

But no sooner had I begun to offer the course than I began to have doubts about these interpretations of judicial behavior. In the University of Pittsburgh’s history department I had been learning of the new ethnocultural interpretation of nineteenth-century American politics and society. A number of careful grass-roots analyses of mid-nineteenth-century American sociopolitical life written in the late 1960s and 1970s describe a tension in the North and West throughout the second half of the nineteenth century between the Party of Public Morality (Republicans), populated by Pietists, and the Party of Personal Liberty (Democrats), populated by members of liturgical faiths. Each of these careful studies had thoroughly rejected earlier visions of nineteenth-century American politics as being class-oriented, with propertied elites of the Whig Party, and later of a tariff-oriented Republican Party dominated by manufacturers, merchants, and railroad men, pitted against stolid workers and farmers of Jacksonian democracy.¹⁸ Rather, the new ethnocultural histories saw members of all classes and occupations—farmers, miners, merchants, laborers—equally represented in the two-party system throughout the North and West, with the political arena serving as a cultural battleground between Puritans (as many Democrats called Republicans) struggling to drive sin (drink, immorality, slavery) from public life and those in the ranks of the Democratic Party, who separated public and private affairs and thus tolerated slaveholding in southern states as well as plays, dance halls, and beer gardens open for business on Sunday afternoons.¹⁹

Whichever their vision of the role the state should play in enforcing behavior, the voters of each party in the North and West agreed on one thing: Questions of moral behavior and limits to personal freedom defined the political debates far more than any workers-employer rivalries, entrepreneurial opportunities, or rich-poor distinctions. Values mattered more to people than class or money. Independently substantiating these findings, for me, was Michael Barton’s content-analysis of Civil War diaries and letters, for Barton found reference to the values of morality, religion, and humanitarianism in (on average) 76.3 percent of them, 28 percent more often than appeared any reference to the values of progress, achievement, materialism, activity, or efficiency.²⁰

At the time, I was not entirely convinced by these findings that class struggle or entrepreneurial activity were essentially secondary aspects of nineteenth-century American life (and I remain satisfied that the legislators chosen by these political cultures often concerned themselves with measures designed to produce economic activity). Nonetheless, the new political history clearly raised doubts as to their importance and explanatory power with regard to the values that informed the everyday behavior and deep-seated ideologies of Americans in the age of Jackson and Story, Lincoln and Dillon. Moreover, these new insights into nineteenth-century American life seemed to me to be consistent with an older literature that described antebellum American reform impulses and revival evangelicalism, and with a newer cultural history of benevolence and the child-centered American/Victorian family.²¹ The second quarter of the nineteenth century, in the words of Daniel Walker Howe, was a time of social innovation, and religion was at the cutting edge of this innovation.²²

Howe was speaking of the temperance movement, the women’s rights movement, and the movements to abolish slavery, corporal punishment, and the death penalty, but his words apply as well to the Jurisprudence of the Heart: These were the years that jurists began to sanction contingency-fee contracts, quantum meruit payments to workers who quit entire labor contracts, and charitable bequests in Mortmain states, years when they first bent rules to help children injured by negligent drivers, used legal fictions to permit those injured on defective roads and bridges to recover damages in the absence of state statutes specifically sanctioning such suits, years when they first sanctioned truly enormous jury awards to accident victims, as well as years when they ignored statutes and the legal principle of comity to aid manumitted, fugitive, and sojourner slaves. Both the republican spirit of the age and the evangelical faith in the perfectability of man inspired the jurists of the nineteenth century; there was at least a little of each spirit in the heart and mind of each and every American jurist, from James Kent to John Forrest Dillon.

Many of these opinions were taken from the Bible, the book of all others for lawyers as well as divines, as Daniel Webster styled it.²³ Thus one jurist, rejecting the imputing of parental contributory negligence to the child, compared it to the old doctrine, rejected by God in Jeremiah 31:29 and Ezekiel 18:2, of the father eating grapes, and the child’s teeth being set on edge. Another indicated that such a rule visited the sins of the fathers upon the child to an extent not contemplated in the decalogue.²⁴ A third, voiding as insufficiently charitable a bequest to create a Quaker boarding school without a means test, offered the words of Jesus (I was hungry and ye gave me meat) in support of his definition of what constituted a charitable bequest.²⁵ Others relied on the common feeling of mankind, guided by the second branch of the great law of love (that is, love thy neighbor as thyself) in adopting the newly created attractive nuisance rule, rejecting the other doctrine because it would illy accord with Christian civilization.²⁶ These jurists were responding to a fundamental law that spoke to their hearts, and were rejecting precedents that spoke to their heads.

How was one to reconcile these views with the economic-oriented vision?²⁷These jurists did not appear to have been insulated from these noneconomic currents of nineteenth-century American culture. Nor had they been corrupted or co-opted by such corporate clients some may have served as attorneys en route to their seats on the high courts. One prominent legal historian, James Willard Hurst, the architect of the release of economic energies interpretation of antebellum American law, has argued that lawmakers were essentially insulated from these cultural currents. Humanitarians and abolitionists might have concerned themselves with slavery and drink and the rights of women, but these were but occasional distractions from the nineteenth century’s primary concern, for the century put all the energy and attention it could into economic interests. True, from time to time a zealous minority concerned with human suffering, ethically sound business practices, or the public good might whip up a general, emotional reaction, but in most affairs one senses that men turned to noneconomic issues grudgingly or as a form of diversion and excitement or in spurts of bad conscience over neglected problems.²⁸

I came to doubt this perspective. Could jurists have been indifferent to the policy of christian civilization²⁹ being debated all around them? I suspected that, like most of their contemporaries, they were not indifferent, that many of them were profoundly affected by the cultural currents of their day. The question appeared to me both intriguing and challenging: Could one test the claims of the reigning paradigm by exploring selectively and systematically the nature of judicial thought and decision making in nineteenth-century America?

In short order I realized that I was formulating an alternative paradigm. I could simply announce that I am hereby rejecting the economic-oriented paradigm out of hand and then proceed to offer my own as elegantly as possible, but that sort of storytelling is not a method I am very comfortable with. I will not subject you here to a narrow bibliographical dialogue with those I am criticizing in the text, but I will carry on some of that dialogue in my endnotes. You may or may not find these of interest, and you can certainly avoid this dialogue if you wish, but I feel a professional obligation to include it. If one is challenging the viability of the majority views of a field of study, one owes it to the holders of those views as well as to the greater audience to explain in sufficient detail why those views ought to be discounted by virtue of what one’s story tells. And given the nature of this subject, such a process makes excellent sense, because many of the very texts that the legal historians I disagree with have used to establish their stories are ones I will be using to establish a contrary one. These texts (most of them appellate cases) have, in the past generation, been given great weight in the teaching of American legal history.³⁰ To the extent that they have been misinterpreted or are unrepresentative, it behooves one seeking as I do to improve on these stories to occasionally guide the reader through a reanalysis—an explication de texte. In short, I propose to engage at times in what the late E. P. Thompson called a discourse of the proof in order to bring to trial the reigning paradigm,³¹ but it will be a discourse virtually confined to the notes.

Let me offer two modest examples of how one can learn something of how jurists decided cases and how their values can be detected in their written opinions. The first case concerned the sale of a horse that had been loaned to the seller to go a journey into the northern part of Vermont. The owner reclaimed it from the buyer, who sued for recovery in 1802, citing several cases from the English books to establish that he qualified as a protected bona fide purchaser. Chief Judge Jonathan Robinson of Vermont’s supreme court, however, pointed out the lack in Vermont of the customary law and statutory markets that these English precedents relied on and explained that the relevant rule was "caveat emptor, look to it, buyer, that he from whom you purchase has a right to sell." But he did not stop there, as he might have. Were the purchaser to defeat the owner’s title, the result would

abridge that friendly intercourse among men which ameliorates society, for if the law is, that a man must consider, that every time he loans his horse to a poor neighbor to go to the mill, or to call aid to his wife in the hour of nature’s difficulty, that he risks the sale of the property by the borrower, . . . this will tend to restrain those acts of neighborly kindness, which, when exercised by the opulent towards the poor, assume a portion of that charity which is the ornament of christian and social life.³²

Theoretically, Chief Justice Robinson might have observed that those who had purchased in good faith deserved the law’s protection lest traders in the general marketplace become leery of all offers and the costs of transactions would accordingly rise. He might have referred the owner for redress to the dishonest fellow to whom he had been foolish enough to lend the horse. That sort of rule would, at least, have been defensible in terms of its economic efficiency. He did neither of these things. Instead, he spoke of a law that protected that friendly intercourse . . . which ameliorates society, of neighborly kindness, of charity, and of christian and social life.

Example two: As I have indicated, jurists sometimes merely expressed their sympathy in dicta with the party that seemed oppressed by an unduly harsh rule that they nevertheless felt compelled to enforce. Sometimes they also took advantage of this opportunity to welcome the day that the legislature might alter the law, a not uncommon way that the judiciary sent a signal to the legislature. I have noted these dicta with interest, but I readily acknowledge that such dicta cost their author little and generally had no long-term useful consequences. It is the more forthright challenges to the harsh rule that will primarily concern us in the ensuing chapters. Nonetheless, for my second example I want to offer such regretful dicta as a general illustration of how one must be sensitive to tone or choice of adjectives, to discourse, in order to comprehend as much as one can from the text as to what the values of antebellum American jurists might have been.

The case was this: One Pike leased property in New York in the 1840s from an owner who covenanted to pay him for such improvement as he might build in the way of a brick dwelling place. Pike, like his more famous New York predecessor, Duncan Fyfe, was a cabinetmaker, and he sought, and thought he had obtained, a variance via an oral agreement with the landlord for a brick cabinetmaker’s shop to suffice as the brick dwelling place improvement. But the landlord was shrewd; he realized that an oral agreement was inferior in law to a written lease and that Pike would not succeed in efforts to compel him to pay for the building when he terminated the lease. To the landlord’s surprise, Pike won the first appellate review; but the New York high court (after 1848, the court of appeals) reversed the lower court’s ruling with the observation that neither law nor equity (now joined in New York) could afford relief without substituting the undefined and therefore dangerous discretion of a court, for the fixed principles upon which the law in relation to contracts should be administered.

Pike lost. And a rock-ribbed economic determinist scholar might well cite this as evidence that mid-nineteenth-century American high court jurists were class-conscious (or unconscious) supporters of propertied elites. The problem with such a reading of the case would be that it would have failed to account for the rest of the opinion’s language. Justice Addison Gardiner, you see, also spoke critically of the settled determination of a selfish man to claim the full benefit of the agreement. This behavior had not quite constituted fraud; yet it was harsh and repulsive. Defendant’s enforcement of a legal right had operated oppressively in this particular case.³³ Gardiner was clearly distressed at the law’s inability to help Pike. His views are not those of a court that believed it could reshape the law to serve the needs of this entrepreneur. But his language reflects the same humanity and distress with unfairness that would drive other jurists at times to alter some rules at the expense of employers, entrepreneurs, and corporations.

Our texts, like those of Robinson’s and Gardiner’s, were written with care, were read from the bench, and were often printed in newspapers. And then many or most of them (depending on the jurisdiction) were printed in formal state reports. Sometimes dicta such as Gardiner’s were read back to them at a later date by counsel for another appellant litigant. Gardiner’s court had not altered the rule, but voices like his could in this way be heard again on oppression. It is these opinions, generally containing elaborate summaries of the facts of the case, the disposition of the case at trial, and the arguments placed before the high court jurists by counsel for the litigants,³⁴ further supplemented by the views of treatise writers and law journal essayists, that form my central evidence base.

What happened was this: I was led to various rules or legal principles by comments in nineteenth-century legal journals, by asides offered in late-nineteenth- or early-twentieth-century treatises, or by recent claims made about their having been altered to spur economic growth or to aid entrepreneurs. I then proceeded, in most instances, to read everything I could about each of these issues—every first, second, and often third and fourth impression case that appeared in every appellate legal jurisdiction of the nineteenth century, as well as every mention of the issue in every treatise and law journal article of the age that I could identify.³⁵ I have not limited myself to the opinions and treatises of jurists from Massachusetts and New York, or for that matter from any particular state or region, but have attempted to grasp the entire picture.

I searched my texts to see which legal rules had been altered by jurists, looking particularly for evidence of innovations that really mattered. Some legal rules, if altered, cause some risks to shift, cause some obligations and duties to change. But prospective litigants take those changes into consideration; they engage in slight readjustments and calculations to nullify any possible long-term consequences. One thinks in this regard of seller warranties or buyer caveats in contract law, or of some easement doctrines in property law. The typical potential litigant is a buyer in one transaction, a seller in the next, a creditor for one purpose, a debtor for another, a farmer claiming a right-of-way one moment from one neighbor and denying it to another in the next. Or, to put the issue in the words of Pennsylvania’s Chief Justice John Bannister Gibson, The capitalists are the . . . great purchasers, the great traders, the great manufacturers, the great borrowers, and consequently the great debtors.³⁶ Courts might alter legal rules in these and other instances without having much impact on society or economy.

But other rules have more import. Gatekeeper rules matter.³⁷ Whether or not the plaintiff has standing, whether she has a legal right to sue for redress, or whether one is automatically barred or subject to nonsuit by virtue of one’s action or one’s failure to act in a prescribed way matters. Rules imposing obligations on corporations, or the lack of them, matter where they prevent plaintiffs from suing. When I detected that some jurists were opening new gates, or closing old ones, I wanted to know more. Moreover, I was struck by the disparity of power in many of these issues between the litigants. To be sure, many cases pitted one individual against another, one corporation against another. But in a great many other cases jurists were being asked to decide between an individual and a corporation (as in accident, pollution, or takings disputes) or between an unpropertied employee and a propertied employer.

Part I of this book concerns, in part, the propensity of gatekeeper jurists to keep certain rules and doctrines as they were. Part 11 deals with the willingness of these and other jurists to change other gatekeeper rules. The Jurisprudence of the Head won the struggles I describe in Part I; that of the Heart won those described in Part 11; but within each story of doctrinal warfare, one can hear both Heart and Head, parrying and thrusting at one another.

AN EXAMPLE OF HEART VERSUS HEAD: SLAVES, SOJOURNERS, AND FUGITIVES

I believe I can illustrate both the Heart-Head tension on nineteenth-century benches and the propensity of innovation to take place where legal gate-keeping was at issue with a review of judicial decisions concerning that peculiar institution, slavery. A number of the scholars who have analyzed decision making in this field, Robert Cover, A. E. Keir Nash, William Nelson, Mark Tushnet, and Paul Finkelman, have alluded to what they variously call fairness and formalism, a moral-formal dilemma, or a law/sentiment dichotomy.³⁸ These tensions are what I call Heart versus Head.

In the antebellum South a specially troubled³⁹ number of state supreme court jurists struggled to provide a justice of the heart⁴⁰ in cases involving crimes by or against slaves and in suits by slaves claiming their freedom on the basis of their master’s will (manumission) or as a consequence of their sojourn in a free state or federal territory. Especially in Jeffersonian-era Virginia, pre-Jacksonian-era North Carolina and Mississippi, and Louisiana and Tennessee throughout the antebellum years, some jurists referred to the influence of the mild precepts of Christianity, to feelings of humanity, the march of benignant policy and provident humanity, the moral sense and humanity of the present age, or, more simply, to humanity⁴¹ in providing common-law defenses to slaves charged with violations of criminal statutes,⁴² in using equity discretion to interpret wills and manumission statutes, in favorem libertatis, and in deciding on slave claims to freedom based on their sojourn in a free region and the principle of comity.⁴³ In the process, they referred to Christianity and the four gospels upon the clerk’s table as being part of the law of the land. They urged their less daring colleagues to step into the moral world and contemplate the unbiased principles of our nature to discover for the exercise of our discretion a wide range between humanity and cruelty. They spoke at times of law, reason, Christianity and common humanity being united in protecting slaves from treatment not strictly permitted by statute.⁴⁴

Southern legislatures steadily limited this discretion, especially in the 1830s, 1840s, and 1850s, and, by the 1850s virtually all southern jurists were beholden in one way (their own election) or another (appointment by a popularly elected governor) to an electorate that expected them to treat blacks, whether enslaved or free, with less respect than whites. Thus, in the 1850s elected jurists in Georgia and Mississippi criticized the fervid zeal in behalf of humanity to the slave that I have cited from some of these earlier opinions, opinions these newly elected jurists characterized as having been founded mainly upon such unmeaning twaddle as "the influence of the ‘natural law,’ ‘civilization and Christian enlightenment,’ in amending, propriovigore the rigor of the common law." They cited an English decision, The Slave Grace (1827),as being the true rule to follow and spoke of being compelled to return to the English doctrine.⁴⁵ This Jurisprudence of the Heartless, or of the Fist, thus put on the mask of doctrinal law (the Jurisprudence of the Head) in the service of slavery but was at its base quite political and should not be confused, in my judgment, with the more genuine deference displayed by other practitioners of the taught legal tradition to precedent and ancient legal doctrines throughout the nineteenth century. But it is important to note that these elected fire-eaters felt the need to rely on the rigor of the common law or English doctrine, rather than simple social expediency, to justify their rejection of unpopular rules.

When southern state courts of the 1850s became less tolerant of examples of an earlier Jurisprudence of the Heart, a few jurists on those benches who sought to continue such humane law found themselves offering doctrinal rationales as well—that is, they defended the earlier decisions in favorem libertatis,as rules that were now too firmly fixed by a uniform series of decisions to be disturbed.⁴⁶ The forerunner to the Dred Scott decision is a case in point. In Scott v. Emerson (1852) a majority of the Missouri Supreme Court abandoned the practice of its predecessors regarding comity and sojourners. In the past, Missouri’s jurists had applied the comity principle to honor northern statutes and court rulings that freed slaves taken into those states voluntarily by their masters and kept there beyond prescribed time limits or conditions. Justice William Scott, a recently elected proslavery figure, spoke for that majority. The dark and fell spirit of abolitionism was alive in the North. Conditions were not as they were when the former decisions on this subject were made. Many northern courts had ceased to observe the comity principle; Missouri could no longer afford to continue to honor it. Chief Justice Hamilton Gamble, a Whig with moderate views on slavery who was also recently elected (outpolling his fire-eating colleague, Scott), dissented from this Jurisprudence of the Fist:⁴⁷

The judicial mind, calm and self balanced, should adhere to principles established when there was no feeling to disturb the view of the legal questions upon which the rights of parties depend. . . . Times may have changed, public feeling may have changed, but principles have not and do not change; and . . . there can be no safe basis for judicial decisions, but in those principles, which are immutable.

Here was an eloquent statement of Head jurisprudence, echoing the voices of a generation of Missouri jurists and echoing as well the voices of many, perhaps most, northern state and federal jurists.⁴⁸ Robert Cover and Paul Finkelman have identified numerous instances in which northern jurists expressed themselves unable and unwilling to ignore the positive law of the Congress (the Fugitive Slave Acts), the fundamental law of the U.S. Constitution (which they understood to call on the North to respect the rights of southern slave owners), and the principle of comity.⁴⁹ Thus New Hampshire’s Jacksonian member of the U.S. Supreme Court, Justice Levi Woodbury, spoke of the law’s path with regard to the Fugitive Slave Act of 1793 as being a straight and narrow one. He could follow it only where the laws lead and would not travel without or beyond them. Similarly, his scholarly predecessor from Massachusetts, Justice Joseph Story, wrote privately that, while he had been opposed to slavery all his life, "I take my standard of duty as a Judge from the Constitution. And Justice John McLean, Woodbury’s Conscience Whig colleague from Ohio, would urge a federal jury in Indiana to follow the law, and not conscience," in deciding whether slave owners who sought damages against those who had interfered with the recovery of their fugitive slaves should recover damages.⁵⁰

But juxtaposed to this black letter northern voice of the Jurisprudence of the Head, on virtually⁵¹ every state supreme court from the 1830s to the Civil War, could be heard the humane voice of the Jurisprudence of the Heart, rejecting the comity principle, defying or circumventing the Fugitive Slave Acts, and defending the northern states’ personal liberty laws. For example, in Pennsylvania, Chief Justice William Tilghman’s Head voice was answered by Justice John Bannister Gibson’s Heart; New York’s Justice Thomas Clerke’s by that of Justice William Wright; Connecticut’s Justice Clark Bissell’s by that of Chief Justice Thomas Williams; Ohio’s successive Chief Justices Thomas Bartley’s and Joseph Swan’s by those of Justices Ozias Bowen and Jacob Brinkerhoff; Wisconsin’s Justice Samuel Crawford by that of Justice Abram Smith.⁵²

The dialogue on the Wisconsin high court in 1854 over the fate of one Sherman Booth may serve as an illustration of this tension between Heart and Head over fugitive slaves. Booth, an abolitionist editor, was charged in federal court with a violation of the Fugitive Slave Act of 1850 for the assistance he had provided a fugitive. He secured a writ of habeas corpus from Justice Smith, and the federal authorities appealed this decision to the state supreme court, where Justice Smith and Chief Justice Edward Whiton affirmed Smith’s order. In the process, they argued that the Fugitive Slave Act was unconstitutional. Smith’s opinion placed fundamental law above the might and authority of judicial determinations that had held northern personal liberty laws supportive of fugitives and their friends to be void with the passage of the federal Fugitive Slave Act of 1850. Authors of such determinations were subordinate to a superior law, a law that Justice Smith had found. Well aware that his was a chartless course, Smith relied on his sense that slavery was an unmitigated evil. He explained that he had been guided by my conscience and hoped that I may stand approved of [by] my God. His colleague, Justice Samuel Crawford, disagreed. The duty of a judicial officer is to expound the law, not to make it. He was bound to yield obedience to the decisions of the U.S. Supreme Court on federal questions and could feel the control of former adjudications by other courts composed of men of the most eminent endowments.⁵³

Wisconsin’s high court thus voted two to one to hold the might and authority of statutes, precedent, constitutional language, and comity to be subordinate to a superior law, whereas Ohio’s bench turned that view away by a three to two vote.⁵⁴ Similarly, the Connecticut Supreme Court divided three to two over a related issue, the status of a slave brought to live in the state by an owner. Nancy Jackson had been taken from Georgia to Connecticut by her owner in 1835 to be his family’s servant. After two years, the owner returned temporarily to the South and Nancy Jackson sought her freedom in Connecticut’s courts. The state’s supreme court narrowly held that the 1784 statute abolishing slavery for all those born in this state, when read in conjunction with another statute barring the importation and abandoning of slaves, allowed the court to rule that slaves born elsewhere who were brought into the state and left there were free. Slavery was contrary to the principles of natural right and to the great law of love (that is, love thy neighbor as thyself), as Chief Justice Thomas Williams put it warmly in his opinion for the majority.

Justice Clark Bissell, writing for the two dissenters, was appalled at this experiment in law making. His job was to administer the law, not to respond to moral and political writers summoned to the bar as they had been in this case to tell of the evils of slavery. As a man, Bissell might well admit the injustice and immorality of slavery, but as a jurist, he was to view only that standard of morality which the law prescribes. He and his colleagues should limit their inquiries and concern with the laws as they are.⁵⁵

The Supreme Court of Ohio and its counterpart in New York (the Court of Appeals) also divided over the question of whether sojourner slaves were entitled to emancipation. When Henry Poindexter, a slave in Kentucky, was sent by his master on errands into Ohio, he initiated an action in that state, claiming that his having sojourned in the free state of Ohio entitled him to freedom. Three of Justice Jacob Brinkerhoff’s colleagues concurred with his opinion that comity was inappropriate: A principle of righteousness which is the soul of all law worthy of the name led him to nullify slavery in such cases "because it is wrong, rather than to lend it an indirect sanction through a morbid exaggeration of the spirit of courtesy. Chief Justice Thomas Bartley was appalled at such a setting aside of the time-honored rule of respect for the law of a neighboring state, the comity principle: We do not sit here to administer the divine law . . . [but] to declare the law as it is, not to change it. New York’s Court of Appeals divided five to three in a similar sojourner case on the eve of the Civil War, with the majority deciding for freedom, with references to principle, and the dissenters emphasizing purely legal questions."⁵⁶

Jurists elsewhere joined this dialogue, but we need not delve further into the details of this discourse; the point is, simply, that there was a discourse, an impassioned one, over the plight of fugitives and sojourners in the North, and that it nicely illustrates the tension between the Jurisprudences of Heart and Head. The tensions described elsewhere in this book were of this basic character as well. They involved different actors, in different states, in different decades, dealing with entirely different doctrines. Often virtually everything was different except the nature of the judicial dialogue—Heart versus Head.

DEFENSORIBUS DOCTRINAE

One final observation: Some of what follows could be condensed out as doctrinal legal history—that is, in many sections I am necessarily concerned with the rules and doctrines that jurists referred to and occasionally altered or created, since these are the major windows available into my primary subject matter: American jurists of the nineteenth century and their thought and values. When doctrinal disagreements arose, I wanted to know why they arose as well as why these disagreements were resolved in different ways in certain courts. Since others have styled this sort of analysis doctrinal, I will accept the term, but I prefer to think of this as intellectual history, and comparative intellectual history at that, since I invariably compare judicial thought and behavior in England with that in over thirty different American jurisdictions.

Some legal historians have recently reacted to the writing of the history of legal rule making with what ranges from polite disinterest to outright disapproval. The rules pronounced by high court jurists, they explain, exist in a rarified domain of their own—iceberg tips that do not tell us much of the great mass of trial court litigation (let alone the out-of-court settlements of disputes) lying beneath them. This rarified domain is not where the real action is, where the rubber meets the road.⁵⁷

I agree completely that doctrinal history is not the only place where the rubber meets the road, and that there is much merit in the work of those who focus on lower court behavior, as well as those of the law and anthropology genre who explore the even greater domain of nonjudicial dispute resolution, that of popular norms of behavior. That is why I refer to widely held cultural beliefs, to deeply felt values from time to time in explaining one or another of the kinder, gentler innovations of common-law rules wrought by nineteenth-century American jurists. It is why I have devoted a large part of chapter 9 to the behavior of nineteenth-century trial court juries in personal injury negligence cases. It is why my next book compares formal (high) and informal (low) legal cultures in the United States, Britain, Canada, Australia, and New Zealand in the eighteenth and nineteenth centuries. And it is why I codirect the Pittsburgh Center for Social History.⁵⁸ But I insist that until those who hold to this critique describe with greater accuracy and more evenhanded emphasis the various twists and turns of nineteenth-century American high court doctrine, this book is necessary: If scholars have inaccurately reported the creation of probusiness or efficient doctrines in America’s appellate courts of the nineteenth century, as I maintain they have, such analysis of doctrine as mine is can hardly be faulted as antiquarian and inappropriate.

As to the claim that high court doctrine does not explain or determine lower court behavior, I allow that there is certainly some truth to this, warranting the continued exploration of trial court behavior. Edward Purcell’s study of the role of federal diversity jurisdiction in the late nineteenth and early twentieth centuries makes it clear, for example, that corporations defending against personal injury suits found removal to a distant federal court to be a powerful procedural weapon.⁵⁹ Procedural questions of jurisdiction and standing clearly matter, and we must note how the high courts ruled on these as well as those involving the substantive law, and whether the lower courts followed these rules. But I ask first: How can one tell whether the trial court judge is ignoring or seeking to vitiate the rules and doctrines of his high court superiors unless one first has a firm grasp of what those rules actually were? Second: Is it really true that trial court judges were not generally scrupulous in following the rules set forth by the high court jurists? Once the state’s supreme court had spoken on the subject of lawyer-client contingency-fee contracts or on the question of whether parental contributory negligence could continue to be imputed to a child injured by a negligent driver (to cite but two examples of doctrinal questions addressed in this study), where is the evidence that trial court judges were willing to ignore the rule, or that the counsel for one or the other of the parties were so blissfully unaware of his duties as to fail to know the rule and to ask for the proper ruling or instruction to the jury? In my own sorties into about four hundred cases of tort and contract in the trial court records of Nevada and Colorado county courts and those of Allegheny County (Pittsburgh) Pennsylvania, I detected evidence that both attorneys and trial judges knew the high court rules. And both Gordon Bakken’s study of California attorneys in the nineteenth century and Randolph Bergstrom’s study of tort actions in New York City trial courts in the late nineteenth and early twentieth centuries make this clear as well.⁶⁰

Surely there were instances where a trial judge was either unaware of, or oblivious to, some particular high court doctrine. That, after all, was the reason that the decisions in such cases were reversed by supreme courts—that is to say, the attorney whose client’s interests had been adversely affected by the error was well aware of it. I allow that trial court errors were sometimes not appealed from, because of attorney ignorance or client parsimony, or because a threatened appeal had led to a settlement. Knowing how often this might have been the case with regard to the fellow servant rule, or with the rule denying quantum meruit recovery to a laborer-plaintiff who had breached an entire labor contract by quitting before the specified date would be worthwhile, and a research effort directed at discovering the frequency that such supreme court rules were not observed at the trial level would, indeed, be valuable. But until the evidence is in, the rebuttable presumption ought to be that supreme court rules were generally observed and followed by trial courts, that they were generally understood by their attorneys when litigation loomed likely, and that they were known and applied by a significant number of citizens in planning their behavior.⁶¹ Once a high court had decided (for example) to allow poor litigants to enter into contingency-fee contracts with attorneys, isn’t it plausible to suppose that lower courts became aware of this and sanctioned such contracts?

To the extent, then, that these presuppositions are correct, this book becomes more than an exercise in the disembodied history of ideas. It is an inquiry into the reasons that jurists decided either to transmit or alter certain received rules of common law and equity that were of real consequence to many Americans in the nineteenth century.

Part One: Old Channels and Moorings: A Jurisprudence of the Head

The Anchors of Precedent, Principle, and Symmetry: Understanding the Jurisprudence of the Head

Common law is the perfection of reason, arising from the nature of God, of man, and of things, and from the relations, dependencies, and connections: It is universal and extends to all men, in every possible situation; and embraces all cases and questions that can possibly arise; it is in itself perfect, clear, and certain; it is immutable, and cannot be changed or altered, without altering the nature and relation of things; it is superior to all other laws and regulations, by it they are corrected and controlled; all positive laws are to be construed by it, and wherein they are opposed to it, they are void.

Jesse Root, introduction to Connecticut Reports, 1789–1793, 1798

His first inquiry in every case was of the oracles of the law for their response; and when he obtained it, notwithstanding his clear perception of the justice of the cause, and his intense desire to reach it, if it were not the justice of the law, he dare not to administer it.

from Horace Binney’s eulogy for Pennsylvania’s Chief Justice William Tilghman before the Law Association of Philadelphia, 1827, in Addresses . . .to Celebrate the Centennial of the Law Association of Philadelphia, 1802-1902, 1902

He clung to the common law as a child to its nurse, and how much he drew from it may be seen in his opinions. . . . He seldom changed his opinion.

Chief Justice J. B. Gibson, eulogizing Pennsylvania’s Justice John Kennedy, 4 Barr (Pa.) 6 (1846)

Has it ever been supposed that [a judge] . . . was at liberty to disregard all precedents, however solemnly repeated and observed, and by giving effect to his own abstract and individual opinions, to disturb the established course of practise in the business of the community?

James Madison to Charles Jared