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The Construction of Citizenship and the Creation of American Common Law in Illinois, 1850–1861

Published online by Cambridge University Press:  09 January 2002

Howard Schweber
Howard Schweber*
Affiliation:
University of Wisconsin-Madison
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Extract

In the middle of the nineteenth century, the vocabulary and analytical organization of American common law underwent a profound and far-reaching transformation in a process that began in the northern industrial states around 1850. The language and categories of pleading cases, the burdens of proof, and the standards for the adjudication of cases, all were transformed. This was not merely a matter of revision, it was a reconfiguration of the basic reasoning process that defined the logic of the law. The result was the displacement of the inherited English common- law system, which until that time had undergone only minor modifications. In its place, a unified system of specifically American common law emerged, constructed around a model of American public citizenship that replaced private rights with public duties as its lodestone.

Type
Research Article
Information
Studies in American Political Development , Volume 15 , Issue 1 , Spring 2001 , pp. 1 - 32
Copyright
Copyright © Cambridge University Press 2001

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References

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20. Ibid., 67, quoting Per Knight Bruce, V. C. Walter v. Telfe, 4 DeG. & S. 315.

21. Hilliard, The Law of Torts, 2:73–75.

22. Ibid., 2:78–79.

23. Ibid., 2:82, quoting 1 Chit. Pl. 71.; 83, citing Thompson, J., Russell v. Cottom, Am. Law Register (May 1859), 406.

24. “Every proprietor of land, on the bank of a fresh water river, has a right to the use of the water, as it was wont to run, without diminution or alteration” (Hilliard, The Law of Torts, 2:108).

25. The owner of a house has a right to make as many windows as he may see fit, although by so doing he may destroy the privacy of his neighbors. The opening of such windows is not actionable, but the remedy is by obstructing them, which may lawfully be done… . But where a house has lights which have existed twenty years, or ancient lights; the erection of another which obstructs them is ground of action or injunction. (Ibid., 145) This rule made slums possible, as newcomers were disadvantaged by village traditions. We think the rule is well settled, that, in a city tenement, an easement of light and air, derived from use and enjoyment, or implied grant, can only extend to a reasonable distance, so as to give to the tenement entitled to it such amount of air and light as is reasonable necessary … not the amount which, under some circumstances, would be agreeable and pleasant, nor the full amount which the tenement has been accustomed to receive; but the amount reasonably necessary. (Ibid., 2:151)

26. Ibid., 2:70.

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29. Gerald Gamm, “Buried Treasure: Theory and Historical,” The Political Methodologist 8 (1982): 8. It is interesting to note that in many of the cases studied here, railroad companies’ lawyers submitted printed briefs, while those submitted by plaintiffs were handwritten. The difficulty of reading faded, handwritten documents in comparison with the ease of reading printed materials creates an obvious bias in the historical researcher that favors reliance on the more accessible texts.

30. [I]n our law the goodness of a custom depends upon it's having been used time out of mind; or, in the solemnity of our legal phrase, time whereof the memory of man runneth not to the contrary. This it is that gives it its weight and authority; and of this nature are the maxims and customs which compose the common law, or le non scripta, of this kingdom. (William Blackstone, Commentaries on the Laws of England [A Facsimile of the First Edition], 4 vols. [Chicago: University of Chicago Press, 1979], 1:67.)

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32. Jones, Alan, “Republicanism, Railroads, and Nineteenth- Century Midwestern Constitutionalism,” in Liberty Property and Government: Constitutional Interpretation Before the New Deal, ed. Paul, Ellen Franklin and Dickman, Howard (Albany: State University of New York at Albany Press, 1989), 249.Google Scholar

33. Illinois Laws, 1855 (Feb. 14, 1855), 173.

34. Illinois Laws, 1854 (Nov. 5, 1849); Illinois Laws, 1854 (Feb. 25, 1854).

35. Seeley v. Peters, 10 Ill. 130 (1848).

36. Illinois State Historical Archives file 1866, 4 (subsequently cited as ISHA).

37. ISHA file 1866, 5.

38. Seeley, 10 Ill. at 130–31.

39. Seeley, 10 Ill. at 142, 141–42 (emphasis added).

40. Seeley, 10 Ill. at 149–50.

41. Seeley, 10 Ill. at 151, 152–53.

42. Great Western RR Co. v. Thompson 17 Ill. 131 (1855), discussed below.

43. Aurora Branch R.R. Co. v. Grimes, 13 Ill. 585 (1852).

44. When a man leave a pit open, or when a man digs a pit and does not cover it, and an ox or an ass falls into it, the owner of the pit shall make it good; he shall give money to its owner, and the dead beast shall be his. (Exodus 21:33)

45. Grimes, 13 Ill. at 588 (emphasis added), citing Butterfield v. Forrester, 11 East 60 (1809).

46. Grimes, 13 Ill. at 588–89, 591.

47. Butterfield v. Forrester, 11 East at 60–61.

48. ISHA file 11990, 1, 6.

49. The Chicago & Mississippi R. R. Co. v. Patchin, 16 Ill. 198 (1854).

50. ISHA file 2364, 1–2.

51. ISHA file 2364, 4.

52. ISHA file 2364, 5.

53. Ibid.

54. Patchin, 16 Ill. at 200–201.

55. Patchin, 16 Ill. at 203.

56. Patchin, 16 Ill. at 204.

57. Ibid.

58. Patchin, 16 Ill. at 200.

59. Ibid. (emphasis added).

60. Great Western RR Co. v. Thompson, 17 Ill. 131 (1855).

61. ISHA file 2333, 10, 7.

62. ISHA file 2333, 2.

63. ISHA file 2333, 14.

64. Thompson, 17 Ill. at 117.

65. Thompson, 17 Ill. at 134.

66. Illinois Central RR Co. v. Cox, 20 Ill. 21 (1858), opinion by Sidney Breese.

67. Central Military Tract R.R. Co. v. Rockafellow, 17 Ill. 541 (1856).

68. ISHA file 12278, 2.

69. ISHA file 12278, 5–6.

70. Rockafellow, 17 Ill. at 549.

71. Rockafellow, 17 Ill. at 551.

72. Ibid.

73. Ibid.

74. Santa Clara v. Southern Pacific Railroad, 118 U.S. 394, 396 (1886), holding that corporations were entitled to protection under the Fourteenth Amendment.

75. Fisher v. Clisbee, 12 Ill. 344, 351 (1851) (emphasis in original).

76. Chicago & Aurora R.R. Co. v. Thompson, 19 Ill. 578 (1858).

77. Thompson, 19 Ill. at 578.

78. Illinois State Historical Archives, file 2991, 3–4.

79. Thompson, 19 Ill. at 585.

80. Thompson, 19 Ill. at 587.

81. Thompson, 19 Ill. at 589.

82. Ibid. (emphasis in original).

83. Thompson, 19 Ill. at 592 (emphasis added).

84. Illinois Central Railroad Co. v. Middlesworth, 43 Ill. 64 (1867).

85. Chicago & Rock Island Railroad Co. v. Reid, 24 Ill. 144, 145 (1860).

86. The Galena and Chicago Union R.R. Co. v. Jacobs, 20 Ill 478 (1858).

87. ISHA file 12514, 21.

88. ISHA file 12514, 10–21.

89. ISHA file 12514, 22–23.

90. ISHA file 12514, 23–24.

91. ISHA file 12514, 25–26, 27–28.

92. ISHA file 12514, 27–29.

93. Jacobs, 20 Ill. at 488.

94. Jacobs, 20 Ill. at 489.

95. Jacobs, 20 Ill. at 497.

96. Ibid.

97. Galena & Chicago Union Railroad Co. v. Dill, 22 Ill. 265 (1859).

98. ISHA file 12784, 11, 51–52.

99. Dill, 22 Ill. at 266–67.

100. ISHA file 127884, 11.

101. ISHA file 127884, 30.

102. ISHA file 12784, 31.

103. ISHA file 12784, 6–7.

104. ISHA file 12784, 7 (emphasis in original).

105. Ibid.

106. Dill, 22 Ill. at 271.

107. Respectively: Yarwood I, 15 Ill. 468 (1854); Fay, 16 Ill. 558 (1855); and Yarwood II, 17 Ill. 509 (1856).

108. Fay, 16 Ill. at 571 (1855).

109. ISHA file 12293, 29.

110. ISHA file 12293, 28.

111. ISHA file 12215, 15–16.

112. Yarwood I, 15 Ill. at 474.

113. Yarwood I, 15 Ill. at 469.

114. Yarwood I, 15 Ill. at 473–74.

115. Yarwood I, 15 Ill. at 471–72.

116. Yarwood I, 15 Ill. at 472.

117. For a discussion of developments concerning the rules of third-party contracts in this period, see Peter Karsten, “The ‘Discovery’ of Law by English and American Jurists of the Seventeenth, Eighteenth, and Nineteenth Centuries: Third-Party Beneficiary Contracts as a Test Case,” Law and History Review 9 (1991), 327–81.

118. Yarwood I, 15 Ill. at 472.

119. In the second trial the brakeman from the trial testified that he believed there was a rule prohibiting passengers from standing on the platforms between cars, but “could not say whether [there were] any printed rules to that effect on that train or not” (ISHA file 12293, 31).

120. Fay, 16 Ill. 558 (1855).

121. Fay, 16 Ill. at 568.

122. Fay, 16 Ill. at 569–70.

123. Fay, 16 Ill. at 571.

124. Yarwood II, 17 Ill. 509 (June 1856).

125. Yarwood II, 17 Ill. at 518.

126. Yarwood II, 17 Ill. at 518, 520.

127. Chicago, Burlington & Quincy Railroad Co. v. Erastus Hazzard, 26 Ill. 373 (1861).

128. Hazzard, 26 Ill. at 383.

129. ISHA file 13586, 7 (pages not numbered). Many of the briefs filed by the railroads’ lawyers were printed, but this was quite unusual for a plaintiff 's brief.

130. Hazzard, 26 Ill. at 390.

131. No copy of that opinion or its associated papers appears in the archive, and its author is unknown. The record does include a copy of Hazzard's original “Brief of Authorities,” but the arguments are entirely duplicative of those that appear in a more developed form in the Petition for Rehearing.

132. ISHA file 13586, 2 (emphasis in original).

133. ISHA file 13586, 5 (emphasis in original).

134. ISHA file 13586, 8.

135. ISHA file 13586, 1.

136. Ibid.

137. Hazzard, 26 Ill. at 377–80, 379.

138. Hazzard, 26 Ill. at 379 (emphasis added).

139. Hazzard, 26 Ill. at 379–80.

140. Hazzard, 26 Ill. at 381.

141. Ibid.

142. Hazzard, 26 Ill. at 384–85 (emphasis in original).

143. Hazzard, 26 Ill. at 387.

144. Chicago, Burlington and Quincy Railroad Co. v. George, 19 Ill. 510 (April 1858).

145. George, 19 Ill. at 517.

146. Galena & Chi. Union R.R. Co. v. Rae, et. al., 18 Ill. 488, 490 (1857).

147. Illinois Central R.R. Co. v. Cox, 20 Ill. 21 (1858).

148. ISHA file 8732, 2–3.

149. ISHA file 8732, 2.

150. If the jury believe from the evidence, that Bennett and Scott were but the employees, agents of the defendant, to haul in the wood of company, or have it hauled in, and not contractors, then they are but their servants, and not contractors in the sense in which it is used in the instructions for defendant. (ISHA file 8732, 3)

151. ISHA file 8732, 4, 3.

152. Cox, 20 Ill. at 27 (emphasis added).

153. Cox, 20 Ill. at 27.

154. Moss v. Johnson, 22 Ill. 633 (1859).

155. ISHA file 12850, 28.

156. ISHA file 12850, 38.

157. Moss, 22 Ill. at 642 (1859).

158. Ibid.

159. Ibid.