¹ Cochran, Thomas C., “The Paradox of American Economic Growth,” Journal of American History 61 (1975): 925;CrossRefGoogle ScholarScheiber, Harry N., “Federalism and the American Economic Order, 1789–1910,” Law and Society Review 10 (1975): 57CrossRefGoogle Scholar.

² 41 U.S. (16 Pet.) 1 (1842).

³ See generally, Freyer, Tony, Harmony and Dissonance: The Swift and Erie Cases in American Federalism (New York, 1981)Google Scholar; Freyer, , Forums of Order: The Federal Courts and Business in American History (Greenwich, Conn., 1979)Google Scholar; Merkel, Philip L., “The Origins of an Expanded Federal Court Jurisdiction: Railroad Development and the Ascendancy of the Federal Judiciary,” Business History Review 58 (Autumn 1984): 336CrossRefGoogle Scholar. The federal courts developed common law doctrine relating to insurance contracts. Freyer, Harmony and Dissonance, 46.

⁴ May, James, “Antitrust Practice and Procedure in the Formative Era: The Constitutional Reach of State Antitrust Law, 1880–1918,” University of Pennsylvania Law Review 135 (1987): 495, 509–17CrossRefGoogle Scholar.

⁵ Stalson, J. Owen, Marketing Life Insurance (Cambridge, Mass., 1942), 750–51, 816Google Scholar.

⁶ Ibid., 103–55, chaps. 8 and 9; Buley, R. Carlyle, The American Life Convention: A Study in the History of Life Insurance (New York, 1953), 1: 42–54Google Scholar.

⁷ Stalson, Marketing Life Insurance, 798; Williamson, Harold F. and Smalley, Orange A., Northwestern Mutual Life: A Century of Trusteeship (Evanston, Ill., 1957)Google Scholar.

⁸ Barnes, William, Second Annual Report of the Superintendent of the Insurance Department, State of New York (New York, 1861)Google Scholar; Barnes, William, Seventh Annual Report of the Superintendent of the Insurance Department, State of New York (New York, 1866)Google Scholar; Clough, Shepard B., A Century of American Life Insurance: A History of the Mutual Life Insurance Company of New York, 1843–1943 (New York, 1946), 35Google Scholar.

⁹ Handlin, Oscar and Handlin, Mary F., Commonwealth: A Study of the Role of Government in the American Economy: Massachusetts, 1774–1861, rev. ed. (Cambridge, Mass., 1969)Google Scholar; Hartz, Louis, Economic Policy and Democratic Thought: Pennsylvania, 1776–1860 (Cambridge, Mass., 1948)CrossRefGoogle Scholar.

¹⁰ For example, Massachusetts established a Board of Insurance Commissioners in 1855. Mass. Laws 1855, ch. 124. New York followed suit in 1859. N.Y. Laws 1859, ch. 366.

¹¹ Whitney, Edward B., “Commercial Retaliation Between the States,” American Law Review 19 (1885): 62;Google Scholar Stalson, Marketing Life Insurance, 296–309.

¹² Clough, A Century of American Life Insurance, 120.

¹³ Barnes, Second Annual Report, 551–627; Barnes, Tenth Annual Report, 828–31.

¹⁴ Barnes, William, New York Insurance Reports Condensed Edition (Albany, N.Y. 1863), 2: 572Google Scholar; Kimball, Spencer L., Insurance and Public Policy (Madison, Wis., 1960), 273Google Scholar. California enacted the nation's most onerous security deposit law, which required foreign corporations to invest $75,000 in local banks or bonds. 1864 Cal. Stats. 131.

¹⁵ Spectator Publishing Company, Insurance Blue Book Centennial Edition (New York, 1877), 159Google Scholar; Stalson, Marketing Life Insurance, 775; Patterson, Edwin W., The Insurance Commissioner in the United States (Cambridge, Mass., 1927), 529–37Google Scholar.

¹⁶ Quoted in Buley, R. Carlyle, The Equitable Life Assurance Society of the United States, 1859–1964 (New York, 1967), 1: 87Google Scholar.

¹⁷ Hurst, James Willard, The Legitimacy of the Business Corporation, 1780–1970 (Charlottesville, Va., 1970), 16Google Scholar.

¹⁸ 38 U.S. (13 Pet.) 519 (1839).

¹⁹ Ibid., 586–87.

²⁰ Welter, Rush, The Mind of America (New York, 1975), chaps. 7 and 9Google Scholar.

²¹ Commonwealth v. Milton, 51 Ken. (B. Mon.) 212 (1851).

²² Ibid., 222–23.

²³ Bank of Augusta v. Earle, 596; Scheiber, “Federalism and the American Economic Order,“ 57.

²⁴ Before the Civil War, the Court had occasion to review the Earle doctrine. It reaffirmed the principle in Layfette Insurance Co. v. French, 59 U.S. (8 How.) 404 (1855).

²⁵ Insurance Times 1 (1868): 555Google Scholar. For a study of Wright's life, see Philip G. Wright and Elizabeth Q. Wright, Elizur Wright, The Father of Life Insurance (n. p., 1937).

²⁶ The National Board of Fire Underwriters was created in response to “the unfriendly legislation in several of the States toward the Insurance Companies of other States, which for several years has been increasing in hostility, and has in some instances created an almost prohibiting burden of deposits, taxes, and other onerous and unnecessary impediments to the prosecution of legitimate business….“ National Board of Fire Underwriters, Proceedings for a Convention of Fire Insurance Companies (1865), 3. See also A. L. Todd, A Spark Lighted in Portland: The Record of the National Board of Fire Underwriters (1966), 8.

²⁷ Stalson, Marketing Life Insurance, 777–80. This early cooperative effort was organized by officials of the Mutual Life Insurance Company of New York.

²⁸ Keller, Morton, Affairs of State: Public Life in Late Nineteenth Century America (Cambridge, Mass., 1977), 162CrossRefGoogle Scholar

²⁹ Insurance Monitor 14 (1866): 417Google Scholar. I have been unable to find official copies of the proceedings of the Chamber of Life Insurance, but transcripts of the group's meetings were reproduced in the Insurance Monitor and in the United States Insurance Gazette.

³⁰ Insurance Monitor 14 (1866): 523Google Scholar; Stalson, Marketing Life Insurance, 798.

³¹ The group's constitution provided: “Any company chartered in the United States to make insurance on human life, conforming to the rules of this Chamber, shall have the right to be represented in it by one vote, and shall have an additional vote for each million of dollars beyond one million in its premium reserve.” Insurance Monitor 14 (1866): 523Google Scholar.

³² Ibid., 417, 522.

³³ The Committee on National Legislation first reported at the December 1867 meeting. Insurance Monitor 15 (1867): 767Google Scholar.

³⁴ Proponents of federal legislation often repeated that they had no intention of limiting the states' ability to regulate intrastate insurance. C. C. Hine, an early advocate of national legislation, wrote in 1866: “it is not the design to ask for a law to regulate the Companies of any State within that State. Congress could not enact such. But under its special grants of power to regulate trade between the States and to promote the general welfare, it can dictate the terms on which Companies may carry on an inter-State business” [emphasis in original]. Insurance Monitor 14 (1866): 56Google Scholar.

³⁵ Graham, Howard J., Everyman's Constitution (Madison, Wis., 1968), 83–85Google Scholar. In its organizational meeting in November 1865, the NBFU adopted a resolution “that congress, in its next session, be memorialized to consider and enact such laws as shall essentially nationalize the business of Insurance in all the States of this Union, and guarantee to all Insurance Companies, complying with such wholesome laws as may be approved by Congress the rights and privileges of equality with the local institutions of such States” [Emphasis in original]. National Board of Fire Underwriters, Proceedings, 5–6.

³⁶ H.R. 675, 39th Cong., 1st Sess. (1866); H.R. 738, 39th Cong., 1st Sess. (1866); H.R. 40, 40th Cong., 1st Sess. (1867); H.R. 94, 40th Cong., 1st Sess. (1867); S.N. 299, 40th Cong., 2d Sess. (1868). The NBFU was behind most of these bills. Insurance Monitor 14 (1866): 58Google Scholar.

³⁷ 12 Stat. 665 (1863); 13 Stat. 99 (1864); Insurance Monitor 14 (1866): 102Google Scholar; Dryden, John F., Addresses and Papers on Life Insurance and Other Subjects (Newark, N.J., 1909), 177–78Google Scholar.

³⁸ S.N. 299, 40th Cong., 2d Sess. (1868). This bill was typical of those calling for a National Bureau of Insurance.

³⁹ Insurance Monitor 14 (1866): 522Google Scholar; 15 (1867): 767-71.

⁴⁰ The full text of the bill is reported in Insurance Times 1 (1868): 41Google Scholar.

⁴¹ Ibid.

⁴² United States Insurance Gazette 27 (1868): 50Google Scholar.

⁴³ Barnes, William, New York Insurance Reports Condensed Edition (Albany, N.Y. 1899), 3: 460Google Scholar.

⁴⁴ New York Evening Post, 10 March 1868, p. 2, col. 1.

⁴⁵ Keller, Affairs of State, chap. 5.

⁴⁶ See, for example, S.R. 185, 41st Cong., 3d Sess. (1871); H.R. 185, 42d Cong., 1st Sess. (1871).

⁴⁷ At the Chamber's first annual meeting in December 1867, Elizur Wright discussed the implications of winning a test case on only the Privileges and Immunities grounds. “It seems to me almost certain that the decision of the Supreme Court will fall very short of what we need. It will go no further than this: to restrict the taxation of the States upon Companies chartered in other States to the rule they apply to their own corporations. That is, an impartial tax. They may burden the business of their own and other Companies very much; and undoubtedly will do so… I think this is not the ground we occupy. We are not dealing with the citizens but with corporations; and the question is whether the States or Congress shall make the laws regulating their action. This is a commerce between states, and we claim that Congress shall determine the intercourse between the States so far as it fairly comes under the denomination of commerce.” United States Insurance Gazette 26 (1868): 128Google Scholar.

⁴⁸ Insurance Monitor 16 (1868): 523Google Scholar.

⁴⁹ The lawsuit that challenged the license fee and premium tax laws of Pennsylvania was brought by the Germania Life Insurance Company of New York. Insurance Monitor 15 (1867): 488Google Scholar. The other was filed by the Equitable Life Assurance Society, involving the laws of Tennessee. Insurance Monitor 15 (1867): 609; 627–28Google Scholar.

⁵⁰ 75 U.S. (8 Wall.) 168 (1869).

⁵¹ Minutes of the Executive Committee, National Board of Fire Underwriters (1867), 14. The background of the Paul v. Virginia litigation is detailed in Nehemkis, Peter R. Jr., “Paul v. Virginia: The Nee d for Re-examination,” Georgetown Law Journal 27 (1939): 519Google Scholar. See also Proceedings of the Executive Committee of the National Board of Fire Underwriters (1869), 28; Proceedings of the Third Annual Meeting of the National Board of Fire Underwriters (1869), 41.

⁵² Paul v. Virginia, 168, 177, 181.

⁵³ Ibid., 181-82.

⁵⁴ Ibid., 177, 181.

⁵⁵ 91 U.S. 275(1876)

⁵⁶ Robbins v. Shelby County Taxing District, 120 U.S. 489 (1887); Minnesota v. Barber, 136 U.S. 313 (1890).

⁵⁷ McCurdy, Charles W., “American Law and the Marketing Structure of the Large Corporation,” Journal of Economic History 38 (1978): 631CrossRefGoogle Scholar.

⁵⁸ Brief for Plaintiff in Error, 5.

⁵⁹ Paul v. Virginia, 183.

⁶⁰ Ibid., 184.

⁶¹ Liverpool Insurance Co. v. Massachusetts, 77 U.S. (10 Wall.) 566 (1870); Ducat v. Chicago, 77 U.S. (10 Wall.) 410 (1870); Philadelphia Fire Association v. New York, 119 U.S. 110 (1886); Hooper v. California, 155 U.S. 648 (1895).

⁶² Pensacola Telegraph Co. v. Western Union Telegraph Company, 96 U.S. 1 (1877). In a vigorous dissent, Justice Field argued that even Congress could not force a state to admit foreign corporations against its will. Ibid., 23–24.

⁶³ 156 U.S. 1 (1895); McCurdy, Charles W., “The Knight Sugar Decision of 1895 and the Modernization of American Corporation Law, 1869–1903,” Business History Review 53 (1979): 304CrossRefGoogle Scholar.

⁶⁴ Insurance Monitor 19 (1871): 383Google Scholar.

⁶⁵ McCurdy, “American Law and the Marketing Structure of the Large Corporation”; see also Pembina Mining Co. v. Pennsylvania, 125 U.S. 181 (1887). In its first opinion recognizing the concept of substantive due process, the Court held that a person could purchase an insurance policy from a foreign corporation by mail. Allgeyer v. Louisiana, 165 U.S. 578 (1897). Allgeyer, however, reaffirmed the states' ability to limit marketing through agents by foreign corporations within their borders.

⁶⁶ At the first annual meeting of the Chamber of Life Insurance in 1866, one company president argued, “If we could not get a national Bureau we want to get State legislation which shall secure us uniformity…. We ought to operate on the public mind and the legislatures to secure that end.“ Insurance Monitor 14 (1866): 519Google Scholar. One of the group's first resolutions called for “the procuring of National or uniform State legislation.” Ibid., 522.

⁶⁷ Delegates from nineteen of the thirty-seven states attended the first meeting. Report of the Proceedings of the National Insurance Convention of the United States (1872), x.

⁶⁸ Ibid., xii-xiii.

⁶⁹ J. McCall, A Review of Life Insurance from the Date of the First National Convention of Insurance Officials, 1871–1897 (n.p., n.d.), 6-7.

⁷⁰ Aside from noncontroversial topics, like the use of a uniform company report form, there was little consensus. Ibid., 8–9; Buley, , American Life Convention, 1: 84–85Google Scholar.

⁷¹ Keller, Morton, The Life Insurance Enterprise, 1885-1910 (Cambridge, Mass., 1963)CrossRefGoogle Scholar. Two bills designed to create a National Bureau of Insurance were introduced, but Congress passed neither. H.R. 7054, 58th Cong. 2d Sess. (1903); H.R. 16274, 58th Cong., 3d Sess. (1904). From December 1904 through May 1906, more than twenty separate bills were proposed, but none was passed. One bill even called for a constitutional amendment to permit congressional regulation of insurance. H.J.R. 64, 59th Cong., 1st Sess. (1905). The new movement for federal regulation ended when the Supreme Court reaffirmed the Paul v. Virginia holding that insurance transactions were not interstate commerce. New York Life Insurance Company v. Dee r Lodge County, 231 U.S. 495 (1913).

⁷² United States v. South Eastern Underwriters Association, 322 U.S. 533 (1944).

⁷³ McCarran-Ferguson Act, 15 U.S.C. Sections 1011-55 (1982).

⁷⁴ 470 U.S. 869(1984).