Study & Research Civil War and Reconstruction 1850-1877: Law and Justice

After the Golden Age. Observers of American law during 1850-1877 frequently remarked on the passing of a heroic era of legal creativity. By 1860 nobody in the country associated with the law enjoyed the stature that had been shared by a dozen figures a generation earlier. Gone were the Olympian jurists such as John Marshall, Joseph Story, James Kent, Lemuel Shaw, John Bannister Gibson, and Thomas Ruffin. No longer did any lawyer grip the public imagination as Daniel Webster, William Wirt, and Rufus Choate once did. Few people continued to discuss the penitentiary movement that had brought Alexis de Tocqueville to the United States on a tour of inspection in 1831-1832, during which he concluded that "it is at the bar or the bench that the American aristocracy is found." The sectional convulsions over the Constitution notwithstanding, the third quarter of the nineteenth century seemed lackluster in comparison as an epoch of law. Paradoxically, however, this era saw the establishment of institutions and the development of ideas that would remain central to American law for decades to follow. The emerging principles, moreover, would prove to be central to the constitutional resolution of the crisis of the Union.

Law and the Economy.

The decline in the public profile of judges and lawyers partly reflected the new role played by law in the American economy. During the first half of the nineteenth century, the law had been instrumental in the profound reordering of society from a network of local agricultural exchanges into a more varied, wide-ranging, and intensified capitalism in which industry was the most dynamic sector. This process partly took place in state legislatures, through grants of property and special privileges to entrepreneurs; and it partly took place in constitutional law, through judicial protection of property interests from legislative interference and through federal supervision of state regulations that threatened to impair the workings of the American common market. No less important than these features of public law, or the relations between government and individuals, was the transformation of private law, or the relations between individuals. Under the Anglo- American common-law tradition, the...
(read more)