1878-1899: Law and Justice: Overview

Technological Change. During the last three decades of the nineteenth century, the railroad, telegraph, telephone, electric light, and other technological innovations had a large impact upon the American legal system. In order to secure the exclusive right to make, use, or sell an invention, an inventor had to obtain a patent, or written document, conferring that privilege. With thirteen thousand patents issued every year during this period, patent law became a source of controversy. If two inventors claimed credit for the same innovation, a judge had to decide the merits of each one’s claim. When a state claimed the power to regulate public transportation, a judge had to determine if reasonable prices were being charged. Lawyers, legal scholars, and law enforcement officials attempted to reform the legal system by instituting written codes to guide judges and to keep their decisions more consistent. The role of the Supreme Court changed dramatically, as the justices spent much of their time listening to cases rising from changing economic or social conditions. The membership of the court changed more in these decades than at any other time in the nation’s history.

Regulation and Police Power. Between 1878 and 1899 the courts were overwhelmed with increasingly complicated lawsuits. Some judges relied on the principles of English common law, the unwritten legal precedents handed down by English courts since the thirteenth century. For example, the state of Illinois in the 1870s attempted to regulate the Storage rates charged by railroads and grain-elevator operators. The railroads and elevator operators opposed such a measure, but in 1877 the U.S. Supreme Court, relying on an English common law principle that allowed for the state regulation of ferries and taverns, determined that a state could regulate businesses in which the public had a legitimate interest. Nevertheless, local courts would not allow the states to impose “unreasonable” rates because that would deprive the railroads and elevator operators of property without due process of law.

Corporate Law. States and the federal government both tried to regulate corporate activity, attempts that corporations challenged vigorously. In 1888 Congress established the Interstate Commerce Commission to regulate commerce between the states. The commission’s first chairman, Judge Thomas Cooley of Michigan, firmly opposed state regulation of business. Under Cooley’s leadership the ICC generally adhered to the wishes of railroads in setting guidelines for rates. Nevertheless, the railroads challenged this minimal regulation, and the Supreme Court restricted the ICC’s power in a series of cases. In order to control the growth of business “trusts,” or monopolies, Congress passed the Sherman Anti-Trust Act (1890), which prohibited conspiracies and combinations in restraint of trade. In 1895 the Supreme Court ruled that the E. C. Knight Company, a sugar trust that controlled more than 90 percent of all refined sugar in the country, was not subject to the Sherman Act. The court maintained that this trust did not violate the 1890 law because it was a monopoly in manufacturing, not trade.

Patent Law. Conflicts over contracts and patents not only absorbed much time and attention, but also led to a proliferation of new lawyers. George Harding, whose first patent case involved Samuel F. B. Morse’s telegraph, brought working models of inventions into the courtroom to demonstrate his clients’ originality. Justice Noah Swayne ruled in 1880 that to qualify as a valid patent an invention had to display an original “flash of thought,” and as a result lawyers hired by inventors flooded the Supreme Court with models and blueprints. The Court’s working space, which consisted of the old Senate chamber in the Capitol building, became so crowded that the justices requested that all patent models not be sent until one month before the case was argued, and that they be collected a month after the case was decided. The Court calendar also became full. For two weeks in early 1888 the court heard arguments involving Alexander Graham Bell’s patents for different parts of the telephone. The Court’s decision in the case (resolved in favor of Bell) took up an entire volume of the Court’s records. In 1891 Congress created a new court of appeals that had final jurisdiction in all patent cases, thus relieving the Supreme Court of some of its burden.

The New Lawyer. A growing number of lawyers in the country helped to protect the expanding corporate world. In 1850 there had been one lawyer for every 1,000 Americans; by the 1880s this ratio had changed to one lawyer for every 780 people. The lawyers of the 1880s were different from their 1850 counterparts. Many new lawyers in 1880 had been trained in professional schools as opposed to “reading law” in the office of a practicing attorney. Instead of handling general practices and a wide variety of cases, lawyers began working for corporations where the pay was better and the work more consistent. Some leading lawyers, such as James C. Carter or Joseph Choate, even maintained successful private practices while handling corporate cases. In addition lawyers tended to work more in their offices and less in the courtrooms.

American Bar Association. Lawyers were one of many groups to form professional associations in this period. Local bar associations had already existed in various cities and states before 1878. In that year lawyers met in Saratoga, New York, to form the American Bar Association. Its 201 members came from twenty-nine states, mainly in the East. Although the American Bar Association did not represent all of the nation’s 64,137 lawyers, it tried to address issues of concern to all counselors. Connecticut lawyer Simeon Baldwin drafted its constitution and said that the purpose of the ABA was “to advance the science of jurisprudence, promote the administration of justice and uniformity of legislation throughout the union, uphold the honor of the profession of the law, and encourage cordial intercourse among the members of the American Bar.” Through annual meetings at Saratoga the ABA tried to accomplish these goals. It established committees to work toward uniform laws and legal reforms. In 1890 the ABA proposed giving an annual gold medal to a person making a significant contribution to the law; two medals were given in 1891 and then the idea was abandoned until 1929.

Codification. In the 1880s the American Bar Association proposed model legal codes to cover various aspects of American life. For instance, the Negotiable Instruments Law set standards governing the issuance of promissory notes, making them uniform in every state. Many state legislatures adopted legal codes to replace the confusing and often conflicting past decisions of judges. David Dudley Field, a New York lawyer (the brother of Supreme Court Justice Stephen Johnson Field and financier Cyrus West Field), had proposed a civil code for the states in 1848. The Field Code of Civil Procedure was most readily adopted in Western states, which were eager to have a code of laws and did not have time to allow the law to evolve through precedence. Many legal scholars opposed the codification movement, arguing that codes of laws drawn up by legislatures would lack the fundamental principle of justice that common law judges needed to determine individual cases. Nonetheless, as the twentieth century neared, states moved to make laws more uniform.

Labor and the Law. In the late nineteenth century the courts viewed the liberty to make contracts as a fundamental American right. When states tried to adjust working hours or regulate unsafe or unhealthy conditions, the courts usually found these attempts to be violations of liberty of contract. The law became increasingly an ally of business, rather than a neutral force designed to resolve disputes. In this era workers began to organize into unions to win higher wages and shorter hours. Businesses tended not to recognize unions, which had only one weapon, a strike, to force employers to negotiate. In the 1880s when laborers threatened to walk out, many employers petitioned a judge to grant an injunction or a writ forbidding the strike. If the union then struck, the leaders could be jailed for violating a court order. In 1894 when the American Railway Union struck against the Pullman Palace Car Company, the leaders of the strike were put on trial for violating the Sherman Act, because by blocking trains the workers were in fact conspiring to obstruct interstate commerce. The case itself was dismissed, but in 1895 the strike’s leader, Eugene V. Debs, received a prison sentence of six months for violating the Supreme Court’s injunction not to strike. Organized labor leaders decried the decision of In re Debs as “government by injunction.”

Indians and the Law. The U.S. Army suppressed the last remnants of Native American resistance in the West between 1876 and 1890. The Indians were moved onto reservations and made dependent on the United States. However, they had an ambiguous legal status: they were not citizens of the United States, or of the state in which they lived, but their tribes were not independent nations, either. In the case Ex parte Crow Dog (1883), the Supreme Court freed a Sioux leader who had killed another Sioux. The laws of the United States against murder, the Court maintained, did not apply on Indian land. (The crime happened on the Pine Ridge Reservation in the Dakota Territory.) Congress quickly acted to allow U.S. courts to punish Indian murderers and passed the Major Crimes Act in 1885. Indian agents, federal officers assigned to distribute rations and to supervise the reservations, recruited Native Americans as policemen to apprehend criminals and to suppress traditional religious ceremonies. In 1887 Congress passed the Dawes Severalty or General Allotment Act to introduce the Native Americans to individual land ownership and farming. The reservations were divided into individual tracts of land, and the “surplus” acreage was given to white settlers.

Chinese and the Law. In the late nineteenth century China’s growing population forced many of its inhabitants to go abroad for work. Thousands came to the American West and worked in laundries, mines, and mills and on the railroads. By the late 1870s, California alone had seventy-five thousand Chinese laborers, about one-ninth of the population. Racism and economic depression made them a handy scapegoat for the frustrations of the times. The 1879 state constitution of California forbade the hiring of Chinese on public works projects and allowed towns to ban Chinese residents. In 1882 Congress barred Chinese from entering the United States for ten years, and other federal legislation made it difficult for Chinese immigrants to stay in the country. By responding to public pressure, Congress helped exacerbate racial tension. In Denver, Seattle, and Los Angeles and in mining camps throughout the West, white mobs burned Chinese homes and killed their residents. The courts generally supported the anti-Chinese legislation; the only real exception was an 1898 case, Wong Kim Ark v. United States when the Supreme Court asserted that a child of Chinese immigrants born in the United States was an American citizen.

African Americans and the Law. The Fourteenth Amendment (1868) to the Constitution granted to all persons born or naturalized in the United States citizenship both of the United States and of the state in which they lived. In conjunction with this amendment Congress passed the Civil Rights Act (1875), forbidding discrimination in public accommodations on the basis of race. In 1883 the Supreme Court declared this law unconstitutional, arguing that it only prohibited state discrimination, not individual or corporate action. Furthermore, eighteen years after slavery had ended, the Court asserted that it was time for black Americans to cease being “the special favorite of the laws.” In response to this decision, many Southern states kept blacks off juries, out of the voting booth, and in separate railroad cars. This campaign to restrict black citizenship encouraged a crusade of lynching: in the 1880s an average of 116 African Americans were lynched every year in the United States. Although many state governments passed laws against lynching, these statues were almost impossible to enforce: local law-enforcement officers often supported the mobs, and white juries would not convict accused lynchers.

Conclusion. Judges were perhaps not the best prepared individuals to deal with the profound changes occurring in the legal system. The courts themselves were changing in this period, under pressure from legislatures, the public, and the growing economy. In the 1880s the membership of the Court changed more than it has during any other decade in its history. Only one justice, John Marshall Harlan, served on the Court during this entire period (1877-1911). Harlan is remembered today as a dissenter in some of the most pivotal Supreme Court decisions ever made, including two cases on civil rights and one each on income tax and trusts. Harlan criticized his colleagues for making political decisions, but he was criticized in turn for turning his dissents into political speeches. Ironically Harlan’s dissenting opinions eventually became law, not because Harlan was wiser than his colleagues or a better judge, but because he understood that the Court’s province was not just law, but justice.