Book contents
- Frontmatter
- Contents
- Acknowledgments
- Introduction
- 1 North and South
- 2 Illinois: “We Were Determined to Have a Rail-Road”
- 3 “The Memory of Man Runneth Not to the Contrary”: Cases Involving Damage to Property
- 4 “Intelligent Beings”: Cases Involving Injuries to Persons
- 5 The North: Ohio, Vermont, and New York
- 6 Virginia through the 1850s: The Last Days of Planter Rule
- 7 The Common Law of Antebellum Virginia: The Preservation of Status
- 8 Virginia's Version of American Common Law: Old Wine in New Bottles
- 9 The South: Georgia, North Carolina, and Kentucky
- 10 Legal Change and Social Order
- Index of Cases
- Bibliography
- Index
Introduction
Published online by Cambridge University Press: 22 July 2009
- Frontmatter
- Contents
- Acknowledgments
- Introduction
- 1 North and South
- 2 Illinois: “We Were Determined to Have a Rail-Road”
- 3 “The Memory of Man Runneth Not to the Contrary”: Cases Involving Damage to Property
- 4 “Intelligent Beings”: Cases Involving Injuries to Persons
- 5 The North: Ohio, Vermont, and New York
- 6 Virginia through the 1850s: The Last Days of Planter Rule
- 7 The Common Law of Antebellum Virginia: The Preservation of Status
- 8 Virginia's Version of American Common Law: Old Wine in New Bottles
- 9 The South: Georgia, North Carolina, and Kentucky
- 10 Legal Change and Social Order
- Index of Cases
- Bibliography
- Index
Summary
In the decade preceding the Civil War, judges in the highest courts of northern states created the system of American common law. The principles of tort, contract, and property liability that these judges developed were entirely different from the inherited system of English law that they replaced. The language and categories of pleading, the allocation and definition of burdens of proof, the standards for the description, and the adjudication of cases all were transformed. This was not merely a process of revision; it was a reconfiguration of the basic reasoning process that defined the logic of the law, its political significance, and its social function. These new, uniquely American common law principles, moreover, remain the basic elements of American legal thought and discourse to this day.
There was not a single, national pattern of legal development. Instead, there were two distinct regional patterns of development, each relatively uniform, in the North and the South. The principles of American common law were first worked out by judges in northern courts in the 1850s. Those principles were ultimately adopted by courts in the South in the 1870s, imported wholesale from the northern jurisdictions in which they had been created. But the antebellum, decade-long process in which American legal doctrines were developed and worked out was solely a northern one. The immediate questions, then, are why was there such a sharply bifurcated pattern in the historical development of American law, and what are the consequences of recognizing this differential pattern of development for our understanding of the relation between legal and political thought and American political development in the nineteenth century?
- Type
- Chapter
- Information
- The Creation of American Common Law, 1850–1880Technology, Politics, and the Construction of Citizenship, pp. 1 - 12Publisher: Cambridge University PressPrint publication year: 2004